Pure Metals Pty Ltd v Shaw and Partners Limited

These proceedings are listed for final hearing commencing on 5 May 2025.

These reasons concern the plaintiff’s notice of motion filed on 19 February 2025 seeking production of 55 documents in respect of which the defendant claimed privilege under s 118 and/or s 119 of the Evidence Act 1995 (NSW) in its verified list of documents. The plaintiff sought production of some of those documents on the basis that they were not privileged at the time they were created. In relation to other documents, and to the extent that the Court upheld the disputed privilege claims, the plaintiff contended that the defendant had waived privilege by putting in issue in these proceedings the lack of authority of one of its former employees to make a representation and enter into an agreement that the plaintiff alleges (and the defendant denies) he made and entered into on behalf of the defendant during the course of the events giving rise to these proceedings.

The motion was heard on 11 April 2025. At the conclusion of that day, I determined that each of the documents was privileged at the time it was created and that the defendant had not waived privilege in respect of any of the documents. I produced a copy of the parties’ schedule of the 55 documents recording my determination in respect of each document, which is Annexure A to these reasons (the Schedule).

I provided the Schedule to the parties and made orders dismissing the plaintiff’s motion with costs on the basis that my reasons would be published later if either party required reasons. The plaintiff subsequently requested reasons for my decision as to the defendant’s privilege claim in respect of the documents at the times they were created, but indicated that it did not require reasons for my decision that privilege had not been waived.

These are those reasons.

The following account of the circumstances in which each of the 55 documents was created is drawn from the pleadings, the evidence adduced by the plaintiff on the hearing of the motion, and the Schedule.

The plaintiff in these proceedings is Pure Metals Pty Limited (Pure Metals).

According to the Second Further Amended Commercial List Statement, Pure Metals was a party to an iron ore extraction joint venture known as the Hawsons Iron Project (the Joint Venture). Pure Metals had a 24.149% interest and Hawsons Iron Limited (then known as Carpentaria Resources Limited) had a 69.814% interest in the Joint Venture.

These proceedings arise out of an agreement between Pure Metals and Carpentaria Resources Limited (Carpentaria) made in September 2020 and amended in May 2021 for the sale of Pure Metals’ interest in the Joint Venture to Carpentaria in consideration for the issue of 90.8 million shares in Carpentaria to Pure Metals (the Consideration Shares). According to the Second Further Amended Commercial List Statement, Pure Metals entered into a side letter with Carpentaria as part of that agreement pursuant to which Pure Metals agreed to appoint the defendant, stockbroking firm Shaw and Partners Limited (Shaw Partners), to act on behalf of Pure Metals in selling the Consideration Shares at a price of not less than $0.043 per share.

It is common ground that Pure Metals and Shaw Partners entered into a written agreement for the provision of brokerage services on 11 May 2021. Shaw Partners alleges that, prior to entering into the brokerage services agreement, it had entered into a binding agreement with Pure Metals on 9 or 10 May 2021 to purchase the Consideration Shares from Pure Metals at $0.043 per share, and that it had then entered into an agreement to on-sell the majority of those shares to a client of its Wholesale Trading division, Regal Funds Management Pty Limited (Regal), at $0.043 per share.

It is common ground that, on 12 May 2021, Pure Metals sent a letter of instruction to Shaw Partners to sell the Consideration Shares (once issued to Pure Metals) at a price of $0.043 per share. Pure Metals alleges that it was an express term of its brokerage services agreement with Shaw Partners that its instructions to buy or sell shares on its behalf were “good till cancelled”. Shaw Partners alleges that it was an express term of that agreement that all such instructions were “automatically accepted on a ‘good till cancelled’ basis unless you instruct otherwise”, and that Pure Metals had instructed otherwise by issuing the 12 May 2021 written instruction to Shaw Partners to sell the whole of the Consideration Shares. Shaw Partners therefore denies that Pure Metals’ instruction issued on 12 May 2021 was accepted on a “good till cancelled” basis.

On 10 May 2021, Mr Michael Holland of Shaw Partners sent an email to Mr Steven Arnison of Shaw Partners. That email, and a duplicate of it, are items 1 and 2 in the Schedule.

According to an affidavit Mr Arnison affirmed on 27 April 2023 that has been served by Shaw Partners in these proceedings, and which was tendered by Pure Metals on the hearing of the motion, Mr Arnison is the General Counsel and Company Secretary of Shaw Partners. In that affidavit, Mr Arnison deposed that Shaw Partners has Investment Advisors and Senior Investment Advisors, and that Mr Holland was an Investment Adviser whose primary responsibility was managing paperwork for clients and arranging their trading.

Pure Metals also tendered an affidavit affirmed by Mr Colin McKenzie on 28 April 2023 and served by Shaw Partners in these proceedings. In that affidavit, Mr McKenzie deposed that is he the Queensland State Manager for Shaw Partners, having held that role since 2014. Mr McKenzie deposed that he was approached by a solicitor acting for Carpentaria in early May 2021 to assist Carpentaria with a proposal whereby Pure Metals would swap its stake in the Joint Venture for equity in Carpentaria. Mr McKenzie deposed that he understood that “Pure Metals would be issued with a large amount of stock (or ‘line’) which it wanted to sell immediately. Shaw was being asked to find buyers for the CAP stock”. Mr McKenzie deposed that he referred this potential trade to Mr Davis of Shaw Partners’ Wholesale Trading team to use his connections to find buyers for the stock. Mr Davis then put Mr Holland on the trade as the liaison between the vendor (Pure Metals) and the Wholesale Trading team. According to Mr McKenzie’s affidavit, Pure Metals had to have a client account with Shaw Partners so that its back office could perform the trade. Mr Holland handled the onboarding of Pure Metals as a client. Mr Holland kept Mr McKenzie updated with the progress of the onboarding and the progress of the trade so that Mr McKenzie could answer any questions that Carpentaria might have. Mr McKenzie deposed that he recalls learning that the trade would be conducted in two tranches.

Pure Metals also tendered an affidavit affirmed by Mr Anthony Davis on 28 April 2023 and served by Shaw Partners in these proceedings. Mr Davis deposed that he jointly leads the Wholesale Trading division at Shaw Partners with Mr Mark Gray. Mr Davis described Mr Holland was “one of my junior team advisors” and deposed that he asked Mr Holland to manage Shaw Partners’ relationship with Carpentaria in about February 2021 when Shaw Partners’ Head of Retail in Queensland referred Carpentaria to the Wholesale Trading division. Mr Davis deposed that he gave instructions to Mr Holland about the price at which Shaw Partners would be willing to bid on behalf of its clients for the Consideration Shares that were to be issued by Carpentaria to Pure Metals, and that Carpentaria accepted Shaw Partners’ bid at $0.043 on 10 May 2021. Mr Davis deposed Shaw Partners had secured the agreement with Regal to purchase the majority of those shares before Shaw Partners made that bid. Once Carpentaria accepted the bid, the Wholesale Trading division sought buyers for the remaining shares. Mr Holland was involved in these efforts by sending a desk note to the Wholesale Trading team to assist them to explain the trade to their clients, and by approaching one particular investment bank which declined to participate in the trade. As referred in more detail below, the Consideration Shares were issued to Pure Metals in two tranches, and each tranche was immediately sold by Shaw Partners to Regal and others. Shaw Partners describes this transaction in its Commercial List Response as an “off-market special crossing”. Mr Davis deposed that, prior to the first crossing, the Wholesale Trading team had established Pure Metals as a client so that the back office of Shaw Partners would be able to conduct the crossing. Each crossing was reported to the market.

According to Mr Arnison’s affidavit affirmed on 13 March 2025 and read by Shaw Partners on the hearing of the motion, the email that Mr Holland sent to him on 10 May 2021 in items 1 and 2 of the Schedule asked Mr Arnison to provide legal advice about a question that was set out in the email (the 10 May question). Shaw Partners claims that the email is privileged pursuant to s 118 of the Evidence Act. Pure Metals does not challenge that privilege claim and does not require reasons for my determination that the privilege has not been waived.

At 4:09pm on 11 May and at 10:06am on 12 May 2021, Mr Holland sent two further emails to Mr Arnison. Those emails, and duplicates of them, are items 3 to 6 in the Schedule. In his 13 March 2025 affidavit, Mr Arnison deposed that those emails provided documents to him that he considered were necessary for him to advise in relation to the 10 May question. Shaw Partners claims that those emails are privileged pursuant to s 118 of the Evidence Act. Pure Metals contends that the evidence does not establish that the emails were sent with the requisite dominant purpose.

At 10:21am on 12 May 2021, Mr Arnison sent an email to Mr Holland which Mr Arnison deposed in his 13 March 2025 affidavit was sent for the purpose of answering the 10 May question. This email and a duplicate of it are items 7 and 8 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 of the Evidence Act. Pure Metals does not challenge that privilege claim and does not require reasons for my determination that the privilege has not been waived.

At 10:22am on 12 May 2021, Mr Holland sent an email to Mr Arnison which Mr Arnison deposed in his 13 March 2025 affidavit asked “a further question associated with the 10 May question which required me to give legal advice (12 May associated question)”. This email and a duplicate of it are items 9 and 10 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 of the Evidence Act. Pure Metals contends that the evidence does not establish that the email was sent with the requisite dominant purpose.

At 10:24am on 12 May 2021, Mr Arnison sent an email to Mr Holland which Mr Arnison deposed in his 13 March 2025 affidavit was sent for the purpose of answering the 12 May associated question. This email and a duplicate of it are items 11 and 12 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 of the Evidence Act. Pure Metals does not challenge that privilege claim and does not require reasons for my determination that the privilege has not been waived.

At 10:25am on 12 May 2021, Mr Holland sent an email to Mr Arnison which Mr Arnison deposed in his 13 March 2025 affidavit he received for the purpose of his answering the 12 May associated question. This email and a duplicate of it are items 13 and 14 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 of the Evidence Act. Pure Metals contends that the evidence does not establish that the email was sent with the requisite dominant purpose.

At 10.51am on 12 May 2021, Mr Arnison sent an email to Mr Holland which Mr Arnison deposed in his 13 March 2025 affidavit was sent for the purpose of answering the 12 May associated question. This email and a duplicate of it are items 15 and 16 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 of the Evidence Act. Pure Metals does not challenge that privilege claim and does not require reasons for my determination that the privilege has not been waived.

Mr Holland sent two further emails to Mr Arnison at 10:53am and 10:56am on 12 May 2021 which Mr Arnison deposed in his 13 March 2025 affidavit he received for the purpose of his answering the 12 May associated question. These two emails and a duplicate of each of them are items 17 to 20 in the Schedule. Shaw Partners claims that the emails are privileged pursuant to s 118 of the Evidence Act. Pure Metals contends that the evidence does not establish that the emails were sent with the requisite dominant purpose.

Items 1 to 20 of the Schedule referred to at [12]-[23] above comprise Category 1 of the documents that are the subject of Pure Metals’ motion.

Of contextual relevance to the determination of the privilege claims in respect of Category 1 (and also Categories 2 and 3) is the following evidence of Mr Arnison in paragraphs 4 to 6 of his 27 April 2023 affidavit that was tendered by Pure Metals on the hearing of the motion:

In his affidavit affirmed on 28 April 2023 which Pure Metals tendered on the hearing of the motion, Mr Davis deposed that Carpentaria shares had been trading in the range of $0.034 to $0.073 during the period between 1 April 2021 to 10 May 2021. Carpentaria went into a trading halt on 12 May 2021 before announcing to the market at 9:06am on 12 May 2021 that Pure Metals had agreed to sell the Carpentaria shares that were to be issued to it in exchange for its interest in the Joint Venture. Carpentaria’s share price rose when the market opened on 12 May 2021, reaching a high of $0.105 that day.

Carpentaria issued the Consideration Shares to Pure Metals in two tranches.

The first tranche was issued on 18 May 2021. It is common ground that Carpentaria shares were trading on the Australian Stock Exchange at the price of $0.165 per share when market opened that day. Shaw Partners sold that first tranche on 18 May 2021 at the price of $0.043 per share. Shaw Partners pleads that it undertook that trade as an “off-market special crossing” consistently with its rights and obligations under the agreement that it claims to have entered into with Pure Metals on 9 or 10 May 2021 to purchase the shares from Pure Metals at $0.043 per share and under the authority of Pure Metals’ instruction issued on 12 May 2021 to sell the Consideration Shares.

On 18 May 2021, Mr Holland sent an email to Mr Davis, Mr Gray, Mr McKenzie and Mr Arnison with the subject heading: “FW: Pure Metals and CAP – Exchange”. In his 13 March 2025 affidavit, Mr Arnison deposed that he was provided with a document by this email and that he understood that he was being asked to provide legal advice in response to the email. The email is item 21 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 of the Evidence Act. Pure Metals contends that the evidence does not establish that the email was sent with the requisite dominant purpose.

At 12.20am on 19 May 2021, Mr Arnison sent an email to Mr Allan Zion in which Mr Arnison deposed in his 13 March 2025 affidavit he provided legal advice in response to a question that he had been asked. This email is item 22 in the Schedule. Pure Metals does not dispute that the email was and remains privileged under s 118 of the Evidence Act.

At 12:23am on 19 May 2021, Mr Zion sent an email to Mr Arnison in response to his 12:20am email referred to immediately above. This email is item 23 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 of the Evidence Act. Pure Metals contends that the evidence does not establish that Mr Zion’s response to Mr Arnison’s legal advice was sent with the requisite dominant purpose.

Items 21 to 23 of the Schedule referred to at [29]-[31] above comprise Category 2 of the documents that are the subject of Pure Metals’ motion.

It is common ground that Pure Metals sent an email to Mr Holland at 12:34pm on 20 May 2021 attaching an amended instruction (or purported instruction) to Shaw Partners not to proceed with the sale of any further Carpentaria Resources shares held in the name of Pure Metals, including the second tranche of the Consideration Shares.

At 12:46pm. Mr Holland forwarded that email to his superiors at Shaw Partners – Mr McKenzie, Mr Davis and Mr Gray. Mr Holland’s email to his superiors contained a single word: “PROBLEMS”.

In his affidavit affirmed on 28 April 2023 which Pure Metals tendered on the hearing of the motion, Mr McKenzie deposed that he received an email from Mr Holland on 20 May 2021 attaching a letter from Pure Metals purporting to instruct Shaw Partners not to carry out the second tranche. Mr McKenzie deposed that he was concerned when he received that email because:

It is common ground that Carpentaria shares were trading on the Australian Stock Exchange at $0.125 when the market opened on 20 May 2021. It will be recalled that Shaw Partners alleges that it had entered into a binding agreement with Pure Metals on 9 or 10 May 2021 to purchase the Consideration Shares from Pure Metals at $0.043 per share, and a further agreement to on-sell the majority of those shares to Regal at the same price of $0.043 per share.

At 12:50pm on 20 May 2021, Mr Davis sent an email to Mr Arnison with the subject line “Fwd: Revised Instruction from Pure Metals Pty Ltd”. This email communication and its attachments are item 24 in the Schedule. In his affidavit affirmed on 13 March 2025, Mr Arnison deposed that this email related to a potential dispute between Shaw Partners and Pure Metals about whether Pure Metals was entitled to rescind its instructions to sell the second tranche of the Consideration Shares as it had purported to do on 20 May 2021, and that the dispute may culminate in legal proceedings. Mr Arnison deposed that the email was provided to him so that he could advise in relation to the potential dispute. Shaw Partners claims that the email and its attachments are privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals contends that the evidence does not rise above Mr Arnison’s opinion about the purpose for which the email was sent to him, and that such evidence is not admissible to establish that the email (including its attachments) was sent with the requisite dominant purpose.

At 2:34pm on 20 May 2021, Mr Holland sent two emails to Mr Arnison by which Mr Arnison deposes in his 13 March 2025 affidavit Mr Holland provided him with documents and information that Mr Arnison had requested concerning the potential dispute so that he could advise in relation to it. These two emails and duplicates of them are items 25 to 28 in the Schedule. Shaw Partners claims that the emails are privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals contends that the evidence does not establish that the email was sent with the requisite dominant purpose.

At 10:15pm on 20 May 2021, Mr Holland sent a further email to Mr Arnison in which Mr Arnison deposes in his 13 March 2025 affidavit he was asked for legal advice concerning the potential dispute. Mr Arnison responded by email to Mr Hollard at 10:19pm that evening responding to the question which he had been asked. These two emails are items 29 and 30 in the Schedule. Shaw Partners claims that the emails are privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals does not challenge that privilege claim and does not require reasons for my determination that the privilege has not been waived.

At 1:43am on 21 May 2021, Mr Arnison sent an email to Mr Holland which he deposes in his 13 March 2025 affidavit that he sent in connection with providing legal advice regarding the potential dispute. At 1:45am on 21 May 2021, Mr Arnison sent an email to Mr McKenzie which Mr Arnison deposes concerned the potential dispute. These emails are items 31 and 32 in the Schedule. Shaw Partners claims that the emails are privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals contends that the evidence does not establish that the emails were sent with the requisite dominant purpose.

At 11:48am on 21 May 2021, Mr Arnison received an email from Mr McKenzie by which Mr Arnison deposed in his 13 March 2025 affidavit he was provided with information relevant to the potential dispute. This email is item 33 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals contends that the evidence does not establish that the email was sent with the requisite dominant purpose.

At 11:51am on 21 May 2021, Mr Arnison sent an email to Mr Zion and Mr Davis which Mr Arnison deposed in his 13 March 2025 affidavit he sent in connection with his advising about the potential dispute. This email is item 34 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals contends that the evidence does not establish that the email was sent with the requisite dominant purpose.

At 8:52pm on 23 May 2021, Mr Arnison sent an email to Mr Zion in which Mr Arnison provided legal advice concerning the potential dispute. This email is item 35 in the Schedule. Pure Metals accepts that this email was and remains privileged.

Carpentaria issued the second tranche of the Consideration Shares to Pure Metals shortly after 11:00am on 24 May 2021.

At 12:25pm on 24 May 2021, Pure Metals sent an email to Mr Holland and others at Shaw Partners re-attaching its 20 May 2021 “Revised Instruction” letter, and re-stating that Shaw Partners had no authority to sell any Carpentaria Resources shares on behalf of Pure Metals.

At 7:49am on 25 May 2021, Mr Holland sent an email to Mr Arnison and others at Shaw Partners with the subject heading “Potential next steps with Pure Metals” in which Mr Arnison deposes in his 13 March 2025 affidavit his advice was sought in relation to the potential dispute. This email is item 36 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals contends that the evidence does not establish that the email was sent with the requisite dominant purpose.

Mr Arnison responded by providing legal advice in an email that he sent to Mr Holland and various other persons at Shaw Partners at 10:17am on 25 May 2021 with the subject heading “RE: Potential next steps with Pure Metals”. This email and a duplicate of it are items 37 and 38 in the Schedule. Shaw Partners claims that the email is privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals does not challenge that privilege claim and does not require reasons for my determination that the privilege has not been waived.

Between 10:37am and 5:23pm on 25 May 2025, six emails were exchanged between Mr Holland, Mr Arnison and other persons at Shaw Partners including Mr McKenzie, Mr Davis and Mr Gray. These emails (including some duplicates) are items 39 to 47 in the Schedule. Each of them has the subject heading “RE: Potential next steps with Pure Metals”. In his 13 March 2025 affidavit, Mr Arnison deposed that the initial email in this chain at 10:37am was responding to his 10:17am email providing legal advice in relation to the potential dispute, and that subsequent emails in the chain were responses to that 10:37am response or other subsequent responses to Mr Arnison’s advice. Shaw Partners claims that the emails are privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals contends that the evidence does not establish that the emails were sent with the requisite dominant purpose.

Pure Metals alleges that, at about 9:00am on 26 May 2021, Shaw Partners represented to, and agreed with, Pure Metals that it would not sell the second tranche of shares without Pure Metals’ authority. The representation is alleged to have been made orally by Mr Holland during a telephone conversation with representatives of Pure Metals.

Shaw Partners denies that allegation.

Shaw Partners further says that, even if the conversation is found to have occurred as alleged by Pure Metals: (1) Mr Holland’s alleged representation did not constitute a representation that Shaw Partners would not sell the shares without further authority from Pure Metals; and (2) Mr Holland was not authorised to make any representation on behalf of Shaw Partners, or to agree to amend the terms of the relevant agreements between Pure Metals and Shaw Partners, or to accept what Shaw Partners characterises as Pure Metals’ purported withdrawal of the instructions to sell the Carpentaria Resources shares issued to Pure Metals.

It is common ground that Carpentaria shares were trading on the Australian Stock Exchange at a price of $0.145 per share when the market opened on 26 May 2021.

Shaw Partners sold the second tranche of the Consideration Shares at a price of $0.043 per share on 26 May 2021. Shaw Partners pleads that it undertook that trade as an “off-market special crossing” consistently with its rights and obligations under the agreement that it claims to have entered into with Pure Metals on 9 or 10 May 2021 to purchase the shares from Pure Metals at $0.043 per share and under the authority of Pure Metals’ instruction issued on 12 May 2021 to sell the Consideration Shares.

Item 48 in the Schedule is a calendar invitation entitled “CAP Trade” sent on 26 May 2021 for a meeting that Mr Arnison deposes to having arranged concerning the potential dispute, and responses to that invitation. The recipients of the calendar invitation were employees of Shaw Partners, including its Chief Compliance Officer Mr Jon Taylor. Shaw Partners claim that the calendar invitation, and the responses to it, are privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals contends that the evidence does not establish that the invitation and the responses to it were sent with the dominant purpose of Shaw Partners being provided with legal advice or professional legal services relating to anticipated legal proceedings.

At 6:34pm on 26 May 2021, Mr Arnison sent an email to Mr Holland entitled “Discussions today regarding CAP”. According to Mr Arnison’s affidavit affirmed on 13 March 2025, the email provided legal advice concerning the potential dispute. That email and a duplicate copy of it are items 49 and 50 in the Schedule. Pure Metals accepts that the email was privileged under s 118 and/or s 119 of the Evidence Act when it was sent and does not require reasons for my decision that the privilege has not been waived.

Mr Holland responded to Mr Arnison’s email referred to immediately above by email sent at 6:40pm on 26 May 2021. That email and a duplicate copy of it are items 51 and 52 in the Schedule. Shaw Partners claims that Mr Holland’s response is privileged pursuant to s 118 and/or s 119 of the Evidence Act. Pure Metals contends that the evidence does not establish that the response was sent with the requisite dominant purpose.

At 8:12am on 27 May 2021, Mr Taylor sent an email to Mr Arnison in which Mr Arnison deposes in his 13 March 2025 affidavit Mr Taylor provided information that was relevant to the potential dispute for the purpose of Mr Arnison giving legal advice. Mr Arnison sent an email to Mr Taylor later that morning at 10:25am attaching a draft letter in connection with the potential dispute. These emails are items 53 and 54 in the Schedule. Shaw Partners claims privilege pursuant to s 118 and s 119 of the Evidence Act. Pure Metals contends that that the evidence does not establish that the email was sent by Mr Taylor with the requisite dominant purpose.

At 11:56am on 27 May 2021, Mr Arnison sent an email to Mr McKenzie by which Mr Arnison deposed in his 13 March 2025 affidavit he updated Mr McKenzie as to a legal step taken in respect of the potential dispute. This email is item 55 in the Schedule. Shaw Partners claims privilege pursuant to s 118 and s 119 of the Evidence Act. Pure Metals contends that that the evidence does not establish the requisite confidentiality or dominant purpose.

Items 24 to 55 of the Schedule referred to at [37]-[58] above comprise Category 3 of the documents that are the subject of Pure Metals’ motion.

Pure Metals commenced these proceedings against Carpentaria as the first defendant and Shaw Partners as the second defendant. Its claims against Carpentaria were subsequently resolved and the proceedings against it were discontinued.

As between Pure Metals and Shaw Partners, the proceedings involve a dispute about inter alia: (1) whether Pure Metals was entitled to issue the instruction to Shaw Partners on 20 May 2021 not to proceed with the sale of the second tranche of the Consideration Shares; (2) whether Mr Holland made the alleged representation on 26 May 2021; and (3) if Mr Holland did make that alleged representation (which Shaw Partners denies), whether he was authorised to do so on behalf of Shaw Partners.

There was no dispute between the parties about the principles to be applied in determining each of the contested privilege claims.

Shaw Partners correctly accepted that it bears the onus of establishing, by admissible evidence, the facts from which the Court can see that the privilege claims are rightly made: Hancock v Rinehart [2016] NSWSC 12 at [27].

Pure Metals emphasised the need for focussed, specific evidence, and submitted that bare conclusory assertions of purpose, inadmissible hearsay, and inadmissible opinion, are not enough: Barnes v Commissioner of Taxation (2007) 242 ALR 601; [2007] FCAFC 88 at [18]; Hancock v Rinehart [2016] NSWSC 12 at [35].

As Pure Metals submitted, the need for specific, focussed evidence, is heightened in a case where the legal practitioner who has been a party to allegedly privileged communications is an in-house solicitor who, by reason of their position, is more likely than an external solicitor to have functions that extend beyond the provision of legal advice and the provision of legal services relating to disputes and legal proceedings: Sydney Airports Corp Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [24].

Each case will necessarily turn on its own facts, and must be decided on the basis of the whole of the evidence adduced that is relevant to the confidentiality and purpose of the communications that are the subject of the disputed privilege claims.

In the present case, the evidence of Mr Arnison in relation to each of the relevant documents must be assessed in the context of: (1) the evidence adduced by Shaw Partners and by Pure Metals concerning the nature of Mr Arnison’s role at Shaw Partners; (2) the evidence adduced by Pure Metals concerning the nature of Mr Arnison’s role in relation to Shaw Partners’ dealings with Pure Metals and the Consideration Shares; (3) Mr Arnison’s role as the sender or as the recipient of each of the communications recorded in the relevant documents; and (4) the context in which those communications occurred which I have described in detail at [7]-[59] above.

As I have already mentioned, Mr Arnison is the General Counsel and Company Secretary of Shaw Partners.

In his affidavit affirmed on 10 February 2025 verifying Shaw Partners’ list of documents, Mr Arnison deposed that he was admitted to practice in 1999 and holds a practising certificate as a corporate legal practitioner. Mr Arnison held such a practising certificate in 2021 at the time of the communications that are the subject of the disputed privilege claims. Mr Arnison deposed that the vast majority of his time is devoted to his role as General Counsel, and less than 5 per cent of his time is spent on company secretarial duties. Mr Arnison deposed that his role as General Counsel includes: (1) providing Shaw Partners with legal advice in relation to the documents that it requires when opening new client accounts in order to comply with regulatory requirements; (2) providing legal advice to Shaw Partners in relation to its obligations under the Corporations Act; and (3) providing advice to Shaw Partners in relation to potential disputes.

Pure Metals read an affidavit of affirmed by its solicitor, Mr Elan Sasson, on 19 February 2025. Mr Sasson refers to Mr Arnison’s appointment as a director of the Stockbrokers and Investment Advisers Association in September 2021 and to various Linked-In posts made by Mr Arnison in more recent years commenting on economic issues and financial markets. Mr Sasson argues that those matters suggest that Mr Arnison had a commercial role at Shaw Partners in 2021 in addition to his roles as General Counsel and Company Secretary.

I accept that those matters do suggest that Mr Arnison’s role involved some work of a commercial rather than a legal nature in 2021, and that he has promoted his commercial expertise in Linked-In posts published in more recent years. However, it does not follow that Mr Arnison was involved in all transactions undertaken by Shaw Partners in a commercial capacity rather than or in addition to in his legal capacity. Nor does it follow that Mr Arnison was involved in Shaw Partners’ dealings with Pure Metals and the Consideration Shares in a commercial capacity rather than or in addition to in his capacity as General Counsel.

Mr Arnison responded to Mr Sasson’s evidence in his affidavit affirmed on 13 March 2025 by referring back to his 27 April 2023 affidavit, which Pure Metals tendered on the hearing of the motion. As I have already mentioned, Mr Arnison gave the following evidence of the nature of his role in relation to Pure Metals and the Consideration Shares in his 27 April 2023 affidavit:

That evidence is consistent with Mr Arnison’s affidavit affirmed on 13 March 2025 in which he deposed that the emails between himself and Mr Holland during the period between 10 and 12 May 2021 (being the Category 1 documents in the Schedule) were sent and received by him in the course of discharging his role as General Counsel to provide Shaw Partners with legal advice about the documents required in order to comply with regulatory requirements when opening new client accounts. That general evidence is supplemented by Mr Arnison’s specific evidence set out in the Schedule in relation to each of the Category 1 documents. I infer that, in deposing in his 27 April 2023 affidavit that he was asked to provide advice to the Wholesale Trading team about the fact that Pure Metals had nominated Clayton Utz’s Trust Account as their bank account details, Mr Arnison is referring to the bank account which Pure Metals had nominated during the client onboarding process referred to in Mr McKenzie’s affidavit for Shaw Partners to deposit any monies payable to Pure Metals as a result of brokerage services provided by Shaw Partners. Mr Arnison’s evidence in his 27 April 2023 affidavit referred to immediately above is also consistent with the evidence of Mr McKenzie and Mr Davis that they and Mr Holland were the personnel involved in the commercial aspects of Shaw Partners’ dealings involving Pure Metals and the Consideration Shares.

In relation to the Category 2 documents, the Schedule summarises the evidence given by Mr Arnison in his 13 March 2025 affidavit concerning the email communications that he received on 18 and 19 May 2021, immediately before and after providing legal advice to Shaw Partners on 19 May 2021. That evidence in relation to those specific communications is not inconsistent with Mr Arnison’s evidence in his 27 April 2023 describing the nature of the whole of his role in relation to Shaw Partners’ dealings with Pure Metals and the Consideration Shares.

Mr Arnison deposed in his 13 March 2025 affidavit that the email communications that occurred after Pure Metals sent its 20 May 2021 “Revised Instruction” letter (being the Category 3 documents in the Schedule) were sent and received in the context of the potential dispute referred to at [37] above, and that each of them was received or sent for the dominant purpose of Mr Arnison providing legal advice in relation that potential dispute. That general evidence is supplemented by Mr Arnison’s specific evidence in his 13 March 2025 affidavit summarised in the Schedule in relation to each of the Category 3 documents. All of this is consistent with Mr Arnison’s evidence in his 27 April 2023 affidavit that he became involved in advising the Wholesale Trading Team in relation to Pure Metals’ letter of 20 May 2021. It is also consistent with the objective likelihood of a dispute at that time, given the disparity between the price of $0.043 at which Shaw Partners claims to have contracted to purchase the Consideration Shares from Pure Metals for on-sale at the same price in an off-market transaction, and the price at which Carpentaria shares were trading on the Australian Stock Exchange at that time.

Pure Metals did not require Mr Arnison for cross-examination.

Paragraph 36 of Mr Sasson’s affidavit points to four emails produced by Shaw Partners as part of its disclosure in these proceedings without any privilege claim. Mr Sasson argues that those four emails show that Mr Arnison was acting in a commercial capacity in relation to Shaw Partners’ dealings with Pure Metals and the Consideration Shares. Having reviewed and considered those four emails in the context of the events and circumstances referred to at [7]-[59] above, I do not accept Mr Sasson’s argument that they show Mr Arnison acting in a commercial role or, as senior and junior counsel submitted, “closing deals”. In my opinion, the four emails identified by Mr Sasson are the very kind of communications that would have been sent to Mr Arnison, or in which he would have been included, by reason of his role that he described in his 27 April 2023 affidavit in the fast-moving state of affairs that evolved from Pure Metals’ engagement of Shaw Partners on 11 May 2021, its instruction issued to Shaw Partners on 12 May 2021, its “Revised Instruction” letter issued on 20 May 2021, and Shaw Partners’ sale of the second tranche of the Consideration Shares on 26 May 2021.

I reject the submission made on behalf of Pure Metals that the evidence concerning the nature of Mr Arnison’s role is “scant”. The evidence about Mr Arnison’s role in relation to Shaw Partners’ dealings involving Pure Metals and the Consideration Shares, including the evidence in Mr Arnison’s 27 April 2023 affidavit tendered by Pure Metals, is succinct and clear. Pure Metals chose not to challenge that evidence by cross-examining Mr Arnison.

I now turn to the three categories of disputed privilege claims.

I refer to items 1 to 20 of the Schedule and paragraphs [7]-[25] above.

The disputed privilege claims relate to items 3 to 6, 9, 10, 13, 14 and 17 to 20 in the Schedule. Mr Arnison’s specific evidence and Pure Metals’ submission in relation to each of those items is recorded in the corresponding row of the Schedule.

Pure Metals’ submission in relation to items 3 to 6 that there is no evidence that Mr Arnison asked for the documents attached to those emails that he received in order provide legal advice in relation to the 10 May question overlooks that: (1) all of the evidence to which I have referred in detail above establishes on the balance of probabilities that there was no other reason for Mr Holland to have been sending documents relating to Pure Metals to Mr Arnison at that time; (2) the subject line of each of the communications in items 5 and 6 – “Re Pure Metals – Clayton Utz Engagement Letter” – is consistent with Mr Arnison’s evidence referred to at [73] above and objectively suggests that Mr Holland’s purpose in sending those emails to Mr Arnison at that time was indeed for Mr Arnison to provide advice to the Wholesale Trading team about the regulatory requirements for the opening of the Pure Metals client account in circumstances where Pure Metals had nominated Clayton Utz’s Trust Account as its bank account; and (3) in the context of communications between an in-house solicitor and their in-house clients about issues of a recurring kind that frequently arise and require legal advice in the ordinary course of the relevant business, it would not be uncommon for the in-house client to understand the kind of documents the in-house solicitor will require in order to give the advice sought and to send those documents to the in-house solicitor without waiting for the solicitor to ask for them. In some circumstances, the privilege claimant may not succeed in establishing the dominant purpose required by s 118 of the Evidence Act without adducing either evidence of such a request, or evidence from the in-house client about their purpose in sending the document to the in-house solicitor. However, that is not a rigid rule to be applied in a formulaic manner in every case regardless of the facts. In the present case, the matters to which I have referred as (1) and (2), together with Mr Arnison’s view that the documents that Mr Holland sent to him by the communications in items 3 to 6 were indeed necessary for him to give the legal advice that had been sought by the privileged communication in items 1 and 2, is sufficient to discharge Shaw Partners’ onus of proving that the emails in items 3 to 6 were sent for the dominant purpose of Mr Arnison providing legal advice to Shaw Partners.

I reject Pure Metals’ submission that the privilege claim in respect of items 9 and 10 fails on the basis that there is no evidence that the email contained an express request by Mr Holland to provide legal advice, and no evidence has been adduced from Mr Holland about his purpose in sending the email. Mr Arnison’s evidence identifies that the substance of the 12 May associated question demanded an answer that would require him to give legal advice. That is unremarkable, given his unchallenged evidence that the question was associated with the 10 May question in respect of which Mr Arnison had already given legal advice (items 1, 2, 7 and 8 in the Schedule) immediately before receiving Mr Holland’s email setting out the associated question (items 9 and 10 in the Schedule). I infer from Mr Arnison’s evidence about the nature of the question that Mr Holland’s dominant purpose in sending the email in items 9 and 10 was for Mr Arnison to provide further legal advice to Shaw Partners. My observations (1) and (2) at [82] above apply equally to items 9 and 10 and allow me to draw that inference more confidently than would otherwise be the case.

I reject Pure Metals’ submission that there is no evidence of facts from which it could be inferred that legal advice privilege exists in relation to items 13, 14 and 17 to 20. The evidence supporting that inference is to be found in the matters to which I have referred as (1) and (2) at [82] above, which apply equally to items 13, 14 and 17 to 20, and in the timing of those emails proximate to Mr Holland’s email communicating the 12 May associated question (items 9 and 10) and Mr Arnison’s privileged emails answering that question (items 11, 12, 15 and 16). On the basis of that evidence, together with the evidence of Mr Arnison’s subjective understanding that he had received the emails in items 13, 14 and 17 to 20 for the purpose of his answering the 12 May associated question, I find on the balance of probabilities that those emails were sent for the dominant purpose of Mr Arnison providing legal advice to Shaw Partners about that question.

I note for completeness that Pure Metals did not suggest that any of the communications in Category 1 were not confidential.

For those reasons, the Category 1 communications in items 3 to 6, 9, 10, 13, 14 and 17 to 20 in the Schedule are the subject of privilege pursuant to s 118 of the Evidence Act.

I refer to items 21 to 23 of the Schedule and [29]-[31] above.

The first disputed privilege claim in Category 2 relates to item 21 in the Schedule. Mr Arnison’s specific evidence and Pure Metals’ submission in relation to item 21 is recorded in the corresponding row of the Schedule. The email in item 21 was sent to Mr Arnison shortly before he gave the legal advice in item 22. All of the evidence to which I have referred in detail above establishes on the balance of probabilities that there was no reason for Mr Holland to have been communicating with Mr Arnison in relation to Pure Metals and the Consideration Shares at this time except to seek legal advice, to provide documents or information for the purpose of Mr Arnison providing such legal advice, or to engage with Mr Arnison about the substance and implications of the legal advice provided. Together with Mr Arnison’s evidence of his subjective understanding at the time he received the email that he was being asked to provide legal advice, that discharges Shaw Partners’ onus of proving on the balance of probabilities that the email in item 21 was sent for the dominant purpose of Mr Arnison providing to Shaw Partners the legal advice that he provided in item 22.

Pure Metals’ submission that the evidence is limited to Mr Arnison’s opinion about the state of mind of Mr Holland as the sender of the email in item 21 erroneously ignores all of the context to which I have referred above, and fails to grapple with the reality that communications between an in-house solicitor and their internal clients may be expressed in few words, relying on the recipient’s pre-existing understanding of the context to understand that the communication requires a particular action, without the need for that requirement to be communicated in express terms. That is all the more likely to be so in a fast-paced transactional environment. I do not consider that Mr Holland’s inclusion of Mr Davis, Mr Gray and Mr McKenzie in the email detracts from the inference that I have drawn. Having regard to all of the contextual evidence to which I have referred, there is no basis for inferring that Mr Holland included them for any reason other than to keep his superiors appraised of the fact that he had initiated a request for legal advice from Mr Arnison, and to ensure that they would be copied in to Mr Arnison’s advice provided in response to his email.

The only other disputed privilege claim in Category 2 relates to item 23 in the Schedule. Mr Arnison’s specific evidence and Pure Metals’ submission in relation to item 23 is recorded in the corresponding row of the Schedule. I reject Pure Metals’ submission that, because Mr Arnison had “multiple roles” at Shaw Partners, his evidence that Mr Zion’s email in item 23 in response to Mr Arnison’s legal advice sent to Mr Zion in item 22 only three minutes earlier is not sufficient to discharge Shaw’s onus of proving that Mr Zion’s email in item 23 was a communication made for the dominant purpose of Shaw Partners receiving legal advice, or that it would disclose the substance of such a communication. I consider that Mr Arnison’s evidence in row 23 of the Schedule is sufficient to discharge that onus, when understood in the context of his unchallenged evidence to which I have referred above about the nature of his role at Shaw Partners in relation to its dealings with Pure Metals and the Consideration Shares, and in the context of the fact that Mr Zion’s email was sent to Mr Arnison almost immediately after Mr Arnison sent his 12:20am email containing advice. As Shaw Partners submitted, the communications to which s 118 of the Evidence Act applies extend to any communication from which there might be inferred the nature of the advice sought or given: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 569 (Gummow J). Pure Metals’ submission that Mr Arnison had “multiple roles”, including, by implication, a role that required him to participate in Shaw Partners’ commercial activities concerning Pure Metals and the Consideration Shares as opposed to or in addition to providing legal advice about those activities, is unfounded.

I note for completeness that Pure Metals did not suggest that any of the communications in Category 2 were not confidential.

For those reasons, the Category 2 communications in items 21 and 23 in the Schedule are the subject of privilege pursuant to s 118 of the Evidence Act.

I refer to items 24 to 55 in the Schedule and [33]-[59] above.

The disputed privilege claims relate to items 24 to 28, 31 to 34, 36, 39 to 48, and 51 to 55 in the Schedule. Mr Arnison’s specific evidence and Pure Metals’ submissions in relation to each of those items are recorded in the corresponding row of the Schedule.

Viewed in isolation, Mr Arnison’s evidence that item 24 is an email concerning the potential dispute referred to at [37] above was provided to him “so that I could advise as to it” is a mere conclusory assertion about Mr Davis’ purpose in sending him the email. However, contrary to Pure Metals’ submissions, there is an abundance of other evidence which gives rise to an inference that Mr Davis sent the email to Mr Arnison for the dominant purpose of him providing legal advice to Shaw Partners about that potential dispute. I refer to: (1) the facts summarised at [33]-[36] above which, viewed objectively, gave rise to a real likelihood of Shaw Partners being sued by Regal and the other buyers of the Consideration Shares if it did not sell the second tranche to them at $0.043 per share, and a real likelihood of Shaw Partners being sued by Pure Metals if did sell that second tranche off-market at that price, which was well below the price for which Carpentaria shares were trading on the market at the time; (2) Mr Arnison’s unchallenged evidence about the nature of his role in Shaw Partners’ dealings with Pure Metals and the Consideration Shares, which establishes that there was no reason for Mr Davis to be sending him an email about that potential dispute on 20 May 2021 other than for the purpose of requesting and/or facilitating Mr Arnison providing legal advice in relation to that potential dispute, including legal advice about what Shaw Partners should prudently and sensibly do in the context of the potential dispute; (3) the evidence of Mr McKenzie, who was being kept informed of the progress of the off-market block trade of the Consideration Shares, that he did in fact anticipate at that time that Shaw may be sued; and (4) the objective fact that the email in item 24 is the first in a series of eight emails that culminated in Mr Arnison providing legal advice about the potential dispute on the evening of 23 May 2021. On the basis of that evidence, viewed as a whole, I find that the email in item 24 was sent to Mr Arnison for the dominant purpose of him providing legal advice to Shaw Partners about the potential dispute.

For the same reasons, I find that the emails in items 25 to 28 and 33 attaching documents and providing information relevant to the potential dispute (some of Mr Arnison had specifically requested) were sent to him for the dominant purpose of him providing legal advice to Shaw Partners about the potential dispute. Pure Metals’ submission to the contrary is based on unfounded speculation that, despite all of the context to which I have referred above, Mr Holland may have sent those emails to Mr Arnison for some other dominant purpose.

For the same reasons, I find that the emails in items 31, 32 and 34 sent by Mr Arnison to Mr Zion, Mr McKenzie and Mr Davis concerning the potential dispute and in connection with Mr Arnison providing legal advice regarding the potential dispute were sent by him for the dominant purpose of him providing legal advice to Shaw Partners about the potential dispute. Pure Metals’ submissions to the contrary are based on unfounded speculation that, despite all of the context and the evidence concerning Mr Arnison’s role to which I have referred above, Mr Arnison may have sent those emails about non-legal matters. Pure Metals’ submissions also overlook that s 118 applies to any communication from which there might be inferred the nature of the advice sought or given: see [90] above.

The evidence concerning Mr Arnison’s role and all of the contextual matters to which I have referred above point overwhelmingly to the probability that Mr Holland’s email in item 36 in the Schedule sent to Mr Arnison and others at Shaw Partners on the morning after Pure Metals re-iterated its 20 May 2021 “Revised Instruction” was sent for the dominant purpose of articulating the range of potential next steps about which the Wholesale Trading team required Mr Arnison’s legal advice. That is consistent with Mr Arnison’s specific evidence that this was an email by which his advice was sought in relation to the potential dispute. Contrary to Pure Metals’ submissions, the mere fact that the email was also sent to various Shaw personnel who are likely to have held commercial roles does not diminish the likelihood that email was sent for that dominant purpose. Having regard to all of the contextual evidence to which I have referred, including Mr Holland’s role as a junior investment adviser, there is no basis for inferring that Mr Holland included those other personnel for any reason other than to keep them appraised of the fact that he had initiated a request for legal advice from Mr Arnison, and to ensure that they would be copied in to Mr Arnison’s advice provided in response to his email.

The series of six emails in items 39 to 47 in the Schedule commenced with an email sent by Mr Holland 20 minutes after Mr Arnison provided his advice in relation to the potential dispute at 10:17am on 25 May 2021, and concluded at 5:23pm that day. Mr Arnison was a recipient of five of the emails, and the sender of one of them. The other parties to the emails included Mr Holland, Mr McKenzie, Mr Gray, and Mr Davis. I reject Pure Metals’ submission that the requisite dominant purpose is not established due to the number of people included in the email chain and the fact that all of them (with the exception of Mr Arnison) held commercial roles, and/or due to the absence of any evidence that any of the emails responding to Mr Arnison’s advice contained a request for further legal advice. Having regard to the evidence concerning the nature of Mr Arnison’s role which I have referred to above, the inclusion and participation of Mr Arnison in this series of emails supports an inference that each of the emails was sent for the dominant purpose of discussing Mr Arnison’s advice with a view to deciding which of the potential next steps could prudently be taken by Shaw Partners in light of that legal advice. It is probable that the nature or substance of Mr Arnison’s legal advice might be inferred from these six emails. Pure Metals accepts that the legal advice is privileged.

For the same reasons, it is probable that Mr Arnison sent the calendar invitation in item 48 above for a meeting to concerning the potential dispute, and the responses to his legal advice, was sent for the dominant purpose of Shaw Partners being provided with legal advice or professional legal services, or both, in relation to the potential dispute. The fact that Mr Anderson provided legal advice by email sent to Mr Holland later that evening with the subject line “Discussions today regarding CAP” (items 49 and 50) provides further support for inference that the meeting, and the calendar invitation that Mr Arnison sent to convene that meeting, had the requisite dominant purpose.

In my view, it is probable that Mr Holland’s email in items 51 and 52 responding to Mr Arnison’s legal advice and sent only six minutes after receiving that advice discloses the nature or substance of that legal advice. That is because, for all of the reasons that I have explained above, the evidence establishes that Mr Holland had no reason to be communicating with Mr Arnison in connection with Pure Metals or the Consideration Shares at this time other than in relation to his legal advice concerning the potential dispute. I reject Pure Metals’ submission that, because Mr Holland’s employment was terminated on the day after this email exchange between Mr Holland and Mr Arnison, it should be inferred that items 51 and 52 relate to that termination process. There is no proper basis for drawing that inference in relation to items 51 and 52, which appear on the face of the information and evidence in the Schedule to have been a direct response to Mr Arnison’s legal advice concerning the potential dispute.

The evidence concerning the nature of Mr Arnison’s role in Shaw Partners’ dealings with Pure Metals and the Consideration Shares, and the evidence of all of the contextual matters referred to above, overwhelmingly supports an inference that the dominant purpose of the Chief Compliance Officer, Mr Taylor, in sending Mr Holland the email in item 53 containing information relevant to the potential dispute was for Mr Arnison to provide legal advice, and I so find. I reject Pure Metals’ submissions that the evidence fails to establish that dominant purpose. Those submissions again fail to have regard to Mr Arnison’s unchallenged evidence about his role in relation to Shaw Partners’ dealings with Pure Metals and the Consideration Shares, and the significant volume of contextual evidence including that, by the time Mr Taylor sent this particular email to Mr Arnison on the morning of 27 May 2021, Mr Arnison had been providing legal advice in relation to the potential dispute on an ongoing basis since the potential dispute first arose.

Contrary to Pure Metals’ submissions, Mr Arnison’s drafting of a letter in connection with the potential dispute is a professional legal service of the kind that in-house solicitors frequently provide to their corporate clients in relation to actual or anticipated legal proceedings to which their clients are or, may become, parties. Viewed in the context of all of the other evidence to which I have referred extensively above, I consider that it is probable that Mr Arnison’s provision of the draft letter in connection with the potential dispute to Shaw Partner’s Chief Compliance Officer for his consideration (item 54) was for the dominant purpose of Mr Arnison providing such professional legal services to Shaw Partners, and I so find. I reject Pure Metals’ submissions to the contrary, which again ignore Mr Arnison’s unchallenged evidence about his role in relation to Shaw Partners’ dealings with Pure Metals and the Consideration Shares, and all of the contextual evidence.

The same reasoning applies to item 55, which I find was a communication by Mr Arnison to Mr McKenzie for the dominant purpose of Mr Arnison providing professional legal services to Shaw Partners in relation to the potential dispute. I reject Pure Metals submission that item 55 cannot be privileged because it related to a legal step that had already been taken and which therefore cannot have been confidential. That submission assumes that the legal step was of a kind that must have been communicated to other parties to the potential dispute or to the world at large. Pure Metals did not identify any evidence supporting that assumption.

I note for completeness that, with the exception of item 55 which I have addressed above, Pure Metals did not suggest that any of the communications in Category 3 were not confidential.

For those reasons, the Category 3 communications in items 24 to 28, 31, 32, 33, 34, 36, 39 to 47, 51, 52 and 53 in the Schedule are the subject of privilege pursuant to s 118 of the Evidence Act and the Category 3 communications in items 54 and 55 in the Schedule are the subject of privilege pursuant to s 119 of the Evidence Act. The Category 3 communications in item 48 in the Schedule are privileged under both s 118 and s 119 of the Evidence Act.

For all of those reasons, and because I had determined that Shaw Partners had not waived privilege in any of the communications in the Schedule, I made orders on 11 April 2025 dismissing Pure Metals’ notice of motion filed on 19 February 2025 with costs.