Case: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 
Outcome: cited
determination of the dominant purpose is a question of fact that must be determined objectively. It is not the same as the 'primary' or the 'substantial' purpose ( Grant v Downs at 678). The dominant purpose may be best described as the ruling, prevailing, paramount or most influential purpose ( Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 336 337). Where the claim is in respect of communications in documents, the court may examine the documents to ascertain the purpose for their creation (Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 70). An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence ( Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 (' Pratt ') at [35] per Finn J, confirmed in AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44] ). If a court finds on the balance of probabilities that the entirety of the document was created for the requisite purpose, then the entire document attracts the privilege. If a court finds that parts, but not all of the document, were created for this purpose, then those parts will attract the privilege (see GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593 at [11] ; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408 at 414 417). By letter dated 17 September 2009 from the applicants' solicitors to the respondent's solicitors (Annexure A to Ex. B), the applicants' solicitors wrote: RE: QUALITY PUBLICATIONS AUSTRALIA PTY LTD -V- COMMISSIONER OF TAXATION FEDERAL COURT PROCEEDINGS NO. NSD 275 OF 2009 RE: QUALITY GROUP AUSTRALIA PTY LT D -V- COMMISSIONER OF TAXATION FEDERAL COURT PROCEEDINGS NO. NSD 347 OF 2009 We refer to our letter dated 14 September 2009 serving the affidavit of Dinesh Ratnam sworn 14 September 2009 claiming privilege over certain of the documents produced under subpoena by the accountants and solicitors of the applicants. The purpose of this letter is to particularise the claims for privilege made in that affidavit over documents produced under subpoena by the applicants' accountants and lawyers in respect of communications they have had with the applicants and each other further than has been particularised in the Tables to the affidavit. We do so to assist the respondent to make an assessment as to the merits of the claims for privilege as the respondent is necessarily limited to the particulars of the documents over which privilege is claimed by the applicants because the respondent has no right to inspect documents for the purposes of either challenging or making a decision to challenge the applicants' claims for legal professional privilege over the documents produced. In relation to the claim for privilege made over the various file notes made by the applicants' accountants, namely, those of Scott Nichols of Sullivan Dewing (Table 1 items 1-5, 8-14, 16-19, 21, 29, 30-32, 43-47, 49-58, 63-66), and letters he has written which have been posted or sent by email (Table 1 items 6, 7, 15, 20, 22-28, 36, 37, 41; Table 2 items 1, 2, 7), and also those of Terry Dewing (Table 1 items 59)), together with letters sent by email by Paul Canty &amp; Michael Canty on behalf of the applicants to those two accountants (Table 1 items 39, 40, 48), not being claims for privilege made over document which have been generated by Coleman [&amp;] Greig, the applicants' lawyers, for the transaction the subject of the appeal in matter no. 347 of 2009, the applicants advise that the advice privilege claimed is based on the Full Federal Court decision in [ Pratt ] at [41]-[47], [52], [103]-[106]. That is to say, the documents generated by Sullivan Dewing, Chartered Accountants, which have been either produced by that firm under subpoena were created for the dominant purpose of facilitating the provision of legal advice by the applicants' solicitors, Coleman &amp; Greig and (prior to their involvement) Evangelos Patakas &amp; Associates in respect of the implementation of the subject transaction and, as such, legal professional privilege attaches to them: see Esso Australia Resources Limited v FCT [1999] HCA 67 ; (1999) 201 CLR 49 at [35] - [61] . Assessment of the Applicants' Claims The Evidence I have already dealt with Mr Patakas' evidence in cross-examination at [4] and [5] above, which overwhelmingly points to him having very little to do with the transaction; neither its negotiation nor its execution; he was just too busy on other 'Quality matters'. More importantly, his re-examination studiously avoided raising his role in providing legal advice to the applicants, in particular legal advice predicated on the need to obtain anterior advice from the accountants, specifically Mr Nicholls. A number of the provisions of his affidavit sworn 3 November 2009 (Ex. C) were fairly objected to on the ground of their conclusionary nature, unsupported as they were by any factual premise other than Mr Patakas' opinion. While I did not reject them in the context of an interlocutory hearing, I cannot give them, in particular para 5(d), any weight at all in the absence of supporting evidence; either from Mr Nicholls or the relevant partner in the firm of C&amp;G who replaced Mr Patakas. As just noted, neither Mr Nicholls nor the relevant partner in the firm of C&amp;G who replaced Mr Patakas were called to give evidence going to the necessity to obtain advice from Mr Nicholls on particular subject matters to enable the applicants to obtain the legal advice they required in relation to the transaction and so bestow privilege on the documentary communications authored by Mr Nicholls within the principle that comes out of Pratt .