ASIC v Rich - [2004] NSWSC 1089

No judgment structure available for this case.

CITATION: ASIC v Rich [2004] NSWSC 1089

HEARING DATE(S): 4, 5, 8 November 2004 (and written submissions)

JUDGMENT DATE:
16 November 2004

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Claims for privilege upheld except in respect of one document, and part of another.

CATCHWORDS: EVIDENCE - client legal privilege - whether client/lawyer relationship existed between Commonwealth DPP and ASIC - whether communications were privileged, where made between legal officers of DPP and ASIC, and between legal/enforcement officer of ASIC and other ASIC officers - waiver of privilege - issue waiver where ASIC puts in issue its state of mind - disclosure waiver in cases of "partial" disclosure

LEGISLATION CITED: Evidence Act 1995 (NSW) s 126

CASES CITED: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405
Ampolex v Perpetual Trustee Co Ltd (1996) 40 NSWLR 15
ASIC v Rich [2004] NSWSC 1017
ASIC v Rich [2004] NSWSC 969
Attorney-General (NT) v Kearney (1985) 158 CLR 500
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Baker v Campbell (1983) 153 CLR 52
Garrat's Ltd v Thanga Thangathurai [2002] NSWSC 39
Grant v Downs (1976) 135 CLR 674
Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445
Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27
Mann v Carnell (1999) 201 CLR 1
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332
Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398
Southern Equities Corporation Ltd v Arthur Andersen & Co (1997) 70 SASR 166
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Waterford v The Commonwealth of Australia (1987) 163 CLR 54

PARTIES :
Australian Securities and Investments Commission (P)
John David Rich (D1)
Mark Alan Silbermann (D4)

FILE NUMBER(S): SC 5934/01

COUNSEL: R B S Macfarlan QC with J P A Durack SC, N J Beaumont and J E O'Sullivan (P)
D L Williams SC with M J Steele and S A Goodman (D1, D4)

SOLICITORS: Jan Redfern, Solicitor for Australian Securities and Investments Commission (P)
Joanne Kelly, Solicitor (D1, D4)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 16 NOVEMBER 2004

5934/01 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION V JOHN DAVID RICH & ORS

JUDGMENT (Privilege and waiver of privilege in respect of three groups of documents) (Revised for typographical errors 16 November 2004)

1 HIS HONOUR: This judgment relates to the defendants' claims to access to three categories of documents, over which ASIC has claimed legal advice or litigation privilege. The three categories of documents, which I shall consider in turn, are:

Onus of proof and the court's inspection of documents

2 As the defendants point out in their written submissions, DS 24, where a question of legal professional privilege arises, the onus is on the party claiming it to make it out by evidence or argument, even though it is the other party that has applied for relief by way of an order for production for inspection or otherwise: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332, 337 per Batt JA.

3 ASIC submits that if the court has any doubt as to whether the documents have the character of privileged documents, it should inspect them. However, the defendants submit that claims to privilege are commonly assessed without the court inspecting the documents in question, and that there is an inherent unfairness in the court inspecting documents when the party seeking inspection has not had the opportunity to make informed submissions after reading the documents.

4 On this point I agree with ASIC that the modern approach of courts is as described in the joint judgment of Stephen, Mason and Murphy JJ in Grant v Downs (1976) 135 CLR 675, where their Honours said (at 689):

"It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinise with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence."

5 Sometimes the court can confidently reach a determination as to whether the documents have the character of privileged documents, that is to say (in the present context), confidential communications created for the dominant purpose of a lawyer providing legal advice to a client, or for the dominant purpose of the client being provided with professional legal services relating to a proceeding or anticipated proceeding in which the client is or may be a party, after inspecting unmasked portions of the documents and having regard to surrounding evidence. Occasionally, however, the most reliable way to determine whether the documents are privileged will be for the court to inspect them, so as to ascertain their character and make appropriate inferences as to their dominant purpose. I judged that to be the position with respect to Documents 10 and 11, but I decided not to inspect the documents myself after senior counsel for ASIC informed me of his client's view that it was desirable for a judge other than the trial judge to inspect them, if inspection was thought necessary. Subsequently Hamilton J examined the documents in the course of deciding that they were privileged: ASIC v Rich [2004] NSWSC 1017 (19 October 2004).

6 Senior counsel for ASIC has informed the court that his client has no concern about the trial judge inspecting all except one of the 16 documents in contention in connection with the 24th notice to produce. In respect of a single document, namely a facsimile dated 12 February 2002 from Mr Connor of ASIC to Ms Marinos of the DPP enclosing five documents portions of which are masked, ASIC's position is that it would be preferable for some judge other than the trial judge to inspect it. ASIC takes the same position with respect to Ms Redfern's three back-up e-mails that are in contention.

7 I have reached a conclusion as to whether the 16 documents produced in answer to the 24th notice to produce, and the three back-up e-mails, have a privileged character by considering the masked versions in light of the surrounding evidence. I have not found it necessary to inspect any of them, and in the exercise of my discretion, in light of the submissions of the parties, I have not done so.

Proof of "dominant purpose" of communications

8 The defendants submit that ASIC had failed to discharge the onus placed upon it, because the evidence placed before the court does not establish that the dominant purpose of the various communications under challenge was the purpose of a lawyer providing legal advice to a client (where ASIC claimed legal advice privilege) or the purpose of a client being provided with professional legal services in relation to a proceeding or anticipated proceeding in which the client is or may be a party (where ASIC claimed litigation privilege).

9 I agree with the defendants that, in order to find that the privilege exists in respect of a communication, the court must reach a conclusion as to the dominant purpose of the communication. The expression "dominant" indicates "that purpose which is the ruling, prevailing or most influential purpose ... the element of clear paramountcy should be the touchstone": Mitsubishi Electric, at 336-7 per Batt JA. The time at which to assess the dominant purpose of the communication is the time at which the communication was made: Baker v Campbell (1983) 153 CLR 52, 112. A document that is not otherwise privileged (perhaps because privilege has been waived) does not acquire a privileged status because it is provided to a lawyer as part of a communication for the dominant purpose of obtaining legal advice: Grant v Downs (1976) 135 CLR 674.

10 It seems to me, however, that the assessment of whether the party claiming privilege in respect of a communication has discharged the onus of proving the dominant purpose of the communication depends upon an evaluation of the evidence as a whole, and it is not necessary for that party to adduce specific affidavit or oral evidence asserting the purpose of the communication. In some cases, the purpose of the communication will be evident from the communication itself, even if part of the communication has been masked. In some cases, it will be helpful to take into account the context in which the communication has been made and the course of dealings between the parties. In the present case, I have taken the view that the materials placed before me are sufficient for me to reach a conclusion as to the dominant purpose of communications in question.

Documents 10 and 11

11 Document 10 is an e-mail from Ms Redfern to various ASIC officers dated 19 October 2001, in which she expresses a "preliminary view" after reviewing various documents, and speaks about "the things that need to be done". What she says on those subjects has been masked, but her statement that counsel will need to advise on some aspects, which she lists, has been disclosed. Document 11 is an e-mail from Ms Redfern to various ASIC officers dated 25 October 2001, in which she confirms her opinion that certain advice is needed and deals specifically with "warrant advice", but what she says on that subject has been masked.

12 Hamilton J has held that the masked portions of Documents 10 and 11 are protected by legal advice privilege, subject to any waiver: ASIC v Rich [2004] NSWSC 1017. In my 27 October judgment I considered whether that privilege had been waived, on the ground that ASIC had placed in issue its state of mind and had therefore waived privilege over documents material to the formation of that state of mind.

13 ASIC has conceded that by reading Ms Redfern's affidavit, it has affirmatively put in issue its state of mind in the period up to December 2001, in relation to the propriety and legality of its use of search warrant materials in relation to the proceedings: 27 October judgment, at [18]. Mr Breckenridge swore an affidavit dated 14 October 2004, in which he said that neither Document 10 nor Document 11 contained any references to the subject matter of search warrants. In my 27 October judgment I held (at [19]) that legal advice by Ms Redfern dealing with aspects of the case other than the search warrant issues did not relate to ASIC's state of mind in relation to the propriety and legality of its use of the search warrant materials in relation to the proceeding, and could not be said to be material which was likely to have influenced that state of mind (as opposed to ASIC's general state of mind concerning the proceeding or some other particular question).

14 In reaching this conclusion, I had in mind (see 27 October judgment at [14]) the point emerging from Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152, 164 and 166, that the waiver extends to material that is relevant to the state of mind put in issue. For example, the weaker party in an undue influence case puts in issue the quality of his or her consent, and therefore waives privilege in respect of legal advice relevant to that consent, but not legal advice or other privileged material that is not relevant to the consent. I also cited (at [16]) the judgment of Byrne J in the Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27 at 42, for the proposition that "the waiver extends to material which could have had a bearing on the state of mind, in the sense of indicating a probability or likelihood rather than a mere possibility". His Honour cited with approval some observations made in other cases (Southern Equities Corporation Ltd v Arthur Andersen & Co (1997) 70 SASR 166, 173, and Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405, 411), which together have that effect. Before doing so, he said (at 42):

"The chronological coincidence of legal communication and the establishment of [the client's relevant] state of mind does not of itself determine the question. The application of the test of unfairness, as expounded by the High Court, involves an examination of the precise nature of this pleaded state of mind and of the impact of the particular communication upon it. It is only where this examination shows that there will arise an unfair inconsistency between the position of the client setting up the state of mind and its maintenance of the privilege that waiver will arise and, then, only to the extent necessary to avoid the unfairness."

15 In my 27 October judgment (at [20]) I noted that the defendants did not merely rely on the content of Ms Redfern's affidavit for their case of waiver. They drew attention, as well, to her evidence in cross-examination that she believed ASIC could use the search warrant material in order to investigate conduct to consider whether there were contraventions at either the criminal or civil standard in relation to directors' duties and some other provisions, and that she considered ASIC was engaged in a single undifferentiated investigation with a combined civil and criminal purpose during 2001. I held, however (at [24]), that the evidence did not establish any waiver of privilege in relation to Documents 10 and 11, because (having regard to Byrne J's statements of principle in Liquorland) I was not able to infer that those documents would contain material that would be likely to have a bearing on ASIC's relevant state of mind. I emphasised that the relevant state of mind was its state of mind as regards permitted use of the search warrant material.

16 I was concerned (at [26]-[27]) that Mr Breckenridge's evidence had not fully addressed the issues raised by the defendants' submissions and the case law. He had said that the masked portions did not refer to the subject matter of search warrants. That left open the possibility that they might contain material bearing on ASIC's state of mind in respect of the search warrant issues while are not expressly referring to search warrant matters. If they did, then according to the authorities the privilege would have been wholly or partly waived. Given the content of Ms Redfern's evidence of her belief that ASIC was conducting a single investigation that might lead to criminal or civil outcomes, and was entitled to use the search warrant material for that combined investigation, the masked portions would bear on ASIC's state of mind in respect of the search warrant issues if, for example, they contained advice relating to whether the investigation could accurately be classified as a single investigation for criminal and civil purposes. But if, on the other hand, the masked portions were legal advice as to the identity of the defendants in the contemplated proceeding, or advice on specific matters such as the detailed causes of action in contemplation, not bearing on the search warrant issues, then the privilege would not have been waived.

17 I noted (at [29]) that in its written submissions ASIC had conceded that it would not be entitled to maintain a claim to privilege over a document which indicated (contrary to Ms Redfern's evidence) that the criminal side of the investigation had come to an end prior to the date upon which One.Tel's written consent was obtained, namely 7 December 2001. I expressed the opinion (at [32]) that in light of other matters, ASIC's concession on this point had been left in an uncertain position.

18 I decided that the best course would be to give ASIC the opportunity to provide further affidavit evidence, should it wish to do so, to address these additional matters. Subsequently Mr Breckenridge swore an affidavit dated 2 November 2004 in which he said (in paragraph 2) that Documents 10 and 11 "do not record or refer to any legal advice:

19 This evidence addresses the matters that have been left open by Mr Breckenridge's earlier evidence, obviously picking up the statements in my 27 October judgment which identified deficiencies in the earlier evidence. If I accept Mr Breckenridge's new evidence, then I shall conclude that ASIC's privilege with respect to Documents 10 and 11 has not been waived.

20 Before turning to Mr Breckenridge's evidence, it is appropriate to deal with the defendants' written submissions on the state of Ms Redfern's evidence, DS 25, as supplemented by their oral submissions. They say that it would be appropriate to infer from the terms of Document 10 and Mr Breckenridge's earlier affidavit evidence that the "preliminary view" set out by Ms Redfern is her view about the progress of the investigation and the nature of the proceedings which appeared to her to be in prospect. In my view no inference that would be helpful to the defendants can be drawn from this material. Hamilton J has held that the masked portions of the e-mail are protected by legal advice privilege, and if Mr Breckenridge is to be believed, they do not bear on the search warrant issues, and therefore they do not go to the question whether the investigation should be properly characterised as a single investigation pursuing criminal and civil matters.

21 In DS 25 the defendants draw attention to Ms Redfern's evidence as to her and ASIC's state of mind at relevant times, quoting passages from her affidavit and her evidence in cross-examination. They say that Ms Redfern's evidence, some of which was given after my 27 October judgment, emphasises that ASIC had critically put in issue its state of mind as to the point in time at which it formed the view that its investigation was directed, not towards a criminal prosecution, but towards civil penalty proceedings. It seems to me, as mentioned above and in my 27 October judgment, that ASIC has put in issue a somewhat more specific matter, namely its state of mind in relation to the propriety and legality of its use of the search warrant material in relation to the proceeding. I do not regard the evidence referred to in DS 25, to the extent that it was given after my 27 October judgment, as expanding the scope of what has been put in issue. If the masked portions of Documents 10 and 11 were to relate to any of the matters mentioned in subparagraphs 2(a) to (d) of Mr Breckenridge's affidavit of 2 November 2004, waiver of privilege may well have been substantiated. But if Mr Breckenridge is believed, the masked portions do not relate to those matters and therefore there has been no waiver. On the basis of this analysis, the additional evidence of Ms Redfern referred to in DS 25 makes no difference to the outcome.

22 There was disagreement between the parties, in oral submissions, as to whether it was appropriate to take into account, in assessing whether there had been a waiver of privilege, evidence given by Ms Redfern in cross-examination. ASIC submitted that such evidence is not given voluntarily and cannot constitute a waiver. The defendants submitted that Ms Redfern's evidence in cross-examination did not involve any new issue, but rather was a matter of testing and probing the evidence she had voluntarily given. It is unnecessary for me to decide this issue, because, assuming that all of the evidence upon which the defendants rely to establish waiver (including answers in cross-examination) is available for that purpose, my view is that on the facts taken as a whole, no waiver has occurred.

Mr Breckenridge's evidence

23 Mr Breckenridge gave affidavit and oral evidence that was relied upon by ASIC for the purposes of the application, and was challenged by the defendants. Mr Breckenridge's evidence is important in respect of all three sets of documents over which privilege claims have been made and resisted. It is necessary for me to make some findings about the matters dealt with in that evidence, and for that purpose to deal with issues of credibility. It is convenient to address all aspects of the challenges to Mr Breckenridge's evidence together, although some of the challenges relate to his evidence on the documents produced under the 24th notice to produce and the back-up e-mails, rather than Documents 10 and 11.

24 There are two components to Mr Breckenridge's evidence. The first component is his factual description of masked portions of documents produced in answer to the 24th notice to produce, and of Ms Redfern's back-up e-mails. In my view, there is no plausible basis for challenging Mr Breckenridge's factual description of the documents. On my observation of him in the witness box, he appeared to be a careful solicitor with experience in dealing with documents. He gave evidence that annexure B to his affidavit of 3 November 2004 in connection with the 24th notice to produce, which lists and describes the documents, was originally drafted by counsel and then amended by him after reviewing the documents. He said the task of comparing masked and unmasked versions of the documents took him 4 or 5 hours. My conclusion is that the descriptions were settled as a result of a thorough process, and I therefore accept Mr Breckenridge's description of the masked portions of the documents produced in answer to the 24th notice to produce. I reach the same conclusion as regards his description of the contents of masked portions of Ms Redfern's back-up e-mails. For reasons I shall give, these conclusions are not diminished by the fact that certain mistakes have been identified in his evidence.

25 The second component of his evidence involves an element of judgment, which is evident in paragraph 2 of his affidavit of 2 November 2004 concerning Documents 10 and 11, paragraph 3 of each of his affidavit of 3 November 2004 relating to the 24th notice to produce and the back-up e-mails respectively, and in the frequent description of individual documents as "legal advice".

26 Senior counsel for the defendants submits that the court should not place any weight on Mr Breckenridge's evidence concerning matters of judgment. He submits that Mr Breckenridge's evidence on matters of judgment merely amounted to drawing inferences from the documents themselves, but in my opinion that is not, alone, a ground for rejecting expert opinion evidence. Three more specific grounds have been put forward in support of the defendants' submission.

27 First, insofar as Mr Breckenridge classifies documents produced in answer to the 24th notice to produce as "legal advice", it is relevant, say the defendants, that he was not familiar with the memorandum of understanding between ASIC and the DPP, or even what other administrative arrangements might be in place between the two agencies. However, Mr Breckenridge gave evidence in cross-examination that he was aware of what occurred between ASIC and the DPP in terms of preparing briefs to be submitted to the DPP for consideration and advice (Transcript, p 2059) and that he gained this experience from conversations and observations around the office. He said he could form a proper view about the purpose of communications between ASIC and the DPP without knowing the details of the administrative arrangements between them, because the documents that he reviewed were clear and their purpose was clear. I am satisfied, on the basis of his evidence, that Mr Breckenridge's knowledge and expertise were sufficient to equip him to make judgments as to whether communications between ASIC and the DPP were properly to be described as "legal advice" rather than communications of a management or administrative kind.

28 Secondly, the defendants point to three instances where Mr Breckenridge has made mistakes. They refer to his description, in appendix B to his affidavit concerning the 24th notice to produce, of a letter of 4 December 2001 from Mr Connor to Ms Marinos. He said in his affidavit that the masked sections summarise legal advice as to the central consideration to be addressed and as to whether draft statements addressed that issue; it identified what ASIC considered to be a relevant issue in relation to possible breaches of the criminal law; and it contained a statement by ASIC as to how it proposed to prove that issue. In fact that letter was produced and is in evidence. It appears to me that Mr Breckenridge's description of it in his affidavit is accurate. The problem, according to the defendants, is that he identified the letter as a privileged document (Transcript pages 2048-2049). But in his evidence he put forward a plausible (though arguably incorrect) basis for that belief, and he made it clear that he had not been responsible for decisions as to whether to claim privilege over the document. I do not regard this evidence as affecting his credibility.

29 Then, the defendants refer to the finding by Hamilton J that one of Mr Breckenridge's descriptions of a document as "legal advice" was wrong. Mr Breckenridge gave evidence (Transcript p 2043-4) to the effect that if he had used the word "advice" rather than "legal advice" in describing the document there would have been no problem, and he said the document involved one lawyer advising other lawyers and people in the team about legal issues that needed to be dealt with at a particular time. In light of this evidence, it would not be justifiable to treat this misdescription as undermining the evidence of Mr Breckenridge on the application.

30 The defendants also refer to Mr Breckenridge's description of the "No Further Action Report. In annexure B to his affidavit concerning the 24th notice to produce, Mr Breckenridge said that the masked sections of the "No Further Action Report" referred to legal advice provided to ASIC by Mr Macfarlan QC. But a large part of the document that had previously been masked was unmasked in the evidence on the application, and the court was able to compare Mr Breckenridge's evidence with that document. A substantial quantity of material under the heading "Project Background" is of a descriptive nature and does not purport to record Mr Macfarlan's advice. In cross-examination (Transcript p 2046), Mr Breckenridge explained that he had assumed that the information under the heading "Project Background" had been lifted from Mr Macfarlan's advice, and he discovered that his assumption was wrong only when he was contacted by counsel and told that this part of the document would be disclosed. He agreed that portions that had been initially masked should never have been masked at all, and that he should not have misdescribed this material in his affidavit. It is necessary to take this mistake into account in assessing the credibility of the witness, but in view of his explanation, I do not regard his mistake as undermining his evidence in other respects.

31 Thirdly, defendants criticise Mr Breckenridge's evidence, in paragraph 2 of his affidavit concerning Documents 10 and 11 (and correspondingly, paragraph 3 of the affidavits concerning the 24th notice to produce and the back-up e-mails) on the ground that he has taken too narrow a view of the task he was required to undertake, and has not correctly applied his mind to the relevant questions. There are two components to the submission.

32 First, the defendants draw attention to Mr Breckenridge's evidence (Transcript p 2071) that, before swearing his affidavit of 2 November 2001 with respect to Documents 10 and 11, he went back to my 27 October judgment but he did not "review the evidence of Ms Redfern that was recorded in [the judgment]". The defendants submitted that this approach was defective, because I had made it clear in my judgment that his task would be to consider whether the masked portions bear on ASIC's state of mind in light of Ms Redfern's evidence. I disagree with this submission. Mr Breckenridge's evidence was ambiguous in one respect. On one reading of it, he did not take into consideration the summary of Ms Redfern's evidence that was part of my 27 October judgment. On another reading, he took into account the whole of my judgment including that summary, but he did not see the need to refer again to Ms Redfern's affidavit or to the transcript of her evidence. In the end, however, nothing turns on that distinction, because it appears from Mr Breckenridge's evidence that he was familiar with the affidavit and oral evidence of Ms Redfern (Transcript pages 2071 and 2077), whether or not he refreshed his mind before making the affidavit, and that he gave consideration to my judgment.

33 Then, the defendants draw attention to Mr Breckenridge's evidence as to how he went about making the judgment in subparagraph (c) of his affidavit concerning the 24th notice to produce, which (like paragraph 2(c) of his affidavit concerning Documents 10 and 11 and paragraph 3(c) of his affidavit concerning Ms Redfern's back-up e-mails) deals with matters which bear upon ASIC's state of mind. Mr Breckenridge said (Transcript p 2070):

"I have looked for documents - I have looked within the documents for references to people within ASIC or outside ASIC questioning the lawfulness, etc, of using materials obtained on a search warrant for a single investigation, and within that, as it says here, looking for advice on the state of mind."

34 According to the defendants, Mr Breckenridge's approach was too narrow. Again, I disagree. That description, though summary, suggests to me that Mr Breckenridge went about preparation of his affidavit in accordance with my expectations concerning the additional evidence referred to in my 27 October judgment.

35 My conclusion is that Mr Breckenridge gave credible evidence, and there is no general reason for disbelieving it, or giving it little or no weight. I accept paragraph 2 of his affidavit of 2 November 2004 as evidence addressing the matters identified in my 27 October judgment, leading me to the conclusion that privilege over Documents 10 and 11 has not been waived. I accept other aspects of his evidence, concerning the documents produced in answer to the 24th notice to produce and Ms Redfern's back-up e-mails, to the extent indicated subsequently in these reasons for judgment.

The DPP as "lawyer" advising ASIC as "client"

36 ASIC's claim to legal advice privilege in respect of documents produced in answer to the 24th Notice to produce is based on the contention that the Director of Public Prosecutions through his relevant legal staff was acting in the position of lawyer, providing advice to ASIC, by its legal officers, as the "client".

37 In Attorney-General (NT) v Kearney (1985) 158 CLR 500, legal professional privilege was claimed in respect of communications between officers of the Northern Territory government and the government's legal officers. It was held that privilege was not available because the communications had been made in furtherance of a deliberate abuse of statutory powers. However, observations were made by some of the judges of the High Court as to whether legal professional privilege would ever attach to communications between government officers and the government's employed lawyers.

38 Gibbs CJ, while noting that the matter had not been explored in argument, said (at 510) that "the privilege extends to legal advice given by [salaried employees] provided that in giving the advice they are acting in their capacity as legal advisers", although "the advice will not be privileged if the legal adviser gives it in some other capacity (e.g., as an officer of a non-legal department) and will be privileged only if the lawyer who gives it has been admitted to practise and … remains subject to the duty to observe professional standards and the liability to professional discipline". He added (at 511) that "there is no reason why communications passing between a public authority invested with power to make subordinate legislation, such as regulations, and the legal advisers of that authority, for the purpose of seeking and giving legal advice in relation to the making of proposed regulations, should not be privileged from production". Wilson J (at 521-2) rejected a submission that legal professional privilege can have no operation at all in the context of subordinate law-making. He said, "it has been held that the rationale underlying legal professional privilege is relevant and applicable to a government's relationship with its employed legal advisers". Dawson J (dissenting, but not on the present point) drew attention to the fact that the legal advisers for whose advice privilege had been claimed were salaried employees of the Northern Territory Law Department. He continued (at 530-531):

"This is, however, no reason for denying privilege to communications passing between them and their client provided that they are consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client".

39 In Waterford v The Commonwealth of Australia (1987) 163 CLR 54, questions arose as to whether documents containing advice that had passed between the Attorney-General and the Treasurer, and between officers of the Crown Solicitor's Office and officers of the Treasury, were privileged. Mason and Wilson JJ said (at 62) that "given the safeguards to which reference is made in the various citations, there is no reason to place legal officers in government employment outside the bounds of legal professional privilege". The safeguards to which they referred were the need for the lawyer to be independent from the pressure of the client although acting as an employee of the client, and the proposition that the privilege does not extend to work performed for the employer in some capacity other than as legal adviser. They added (at 62) that whether in a particular case the relationship between a legal adviser and the government will give rise to the privilege will be a question of fact, and they said that "it must be a professional relationship which secures to the advice an independent character notwithstanding the employment".

40 Brennan J (at 72) was not prepared to accept " the notion that salaried lawyers are generally to be assimilated to the position of the independent legal profession for the purpose of determining the availability of legal professional privilege". But in his Honour's view (at 72-3), where the legal adviser is in the employment of the Crown, the influences that naturally attend the relationship of employer and employee are not so significant and the independence which is essential for legal professional privilege is present. Deane J (at 81) was inclined, subject to reservations, to accept the proposition that legal professional privilege can extend to protect the advice given within an organisation by a salaried legal adviser, even in the private sector. He said (at 82) that the principle of legal professional privilege applies in relation to the seeking and giving of professional legal advice within and between the various branches of the executive government. Dawson J (at 95-96) repeated the view he had expressed in Kearney, that "legal professional privilege may attach to communications passing between a salaried legal adviser and his employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client".

41 Debelle J considered these authorities in Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398, summarising the position by saying (at [11]) that:

"… the question whether the relationship between the employed solicitor and his employer is such that communications between them will give rise to legal professional privilege is a question of fact. The party claiming the privilege has the onus of proving that fact".

42 In that case an annual report listed the names and qualifications of persons involved in the management of the company, showing that some of them had legal qualifications while not describing any of them as a legal adviser. Debelle J was not prepared to infer that those with legal qualifications were employed as legal advisers. He said (at [21]:

"It is not unusual for persons holding legal qualifications, and in some cases a practising certificate, to act as executives and not as legal advisers. There may be occasions when they might comment on legal issues or prepare legal documents but they do not then act as independent legal advisers merely as managers or executives with legal knowledge".

43 The defendants concede, having regard to these authorities, that a communication to or from a lawyer working "in-house" for a government organisation may be privileged, but they say that the conclusion depends on the position occupied by that person, the capacity in which he or she received or made the communication, and also the purpose of the communication. ASIC does not challenge this statement of principle, as such. In my opinion it is consistent with the authorities and I accept it. In the present case, the relevant officers of the DPP were legal officers, and I infer that they were in a position in which they might give privileged legal advice on an appropriate occasion. The question to which the evidence draws attention (in addition to the question of purpose, discussed above in general terms) is whether the DPP's legal officers were acting in the capacity of independent legal advisers in their dealings with ASIC, or in some more managerial or administrative capacity. In contending for the latter conclusion, the defendants place some emphasis on the ASIC/DPP Memorandum of Understanding, to which I shall refer.

44 Before doing so, however, I should note a dispute between the parties as to the significance of Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445. In that case the DPP gave advice to the Australian Tax Office and questions arose as to whether documents associated with that advice were privileged. It was contended that the DPP had no power to give legal advice, there being no proceeding to which an authority of the Commonwealth was a party.

45 The Full Federal Court held that communications between lawyer and client attract the protection of legal professional privilege even if the lawyer is not entitled to give legal advice, as long as the client holds the genuine belief that the lawyer is entitled to do so. Having adopted that principle, it was unnecessary for the court to decide whether, on the occasion in question, the DPP had the power to give advice. However, the court reviewed the arguments for and against the DPP's power.

46 Section 6 of the Director of Public Prosecutions Act 1983 (Cth) listed various functions of the DPP, and added a power (s 6(1)(n)) "to do anything incidental or conducive to the performance of any of the functions referred to in" certain specified provisions. However, s 9(11), dealing with the powers of the DPP, contained an express power to act as counsel or solicitor for an authority of the Commonwealth, where the authority was a party to a proceeding in respect of a matter connected with the performance of any of the functions of the DPP. The issue was whether the power to give advice incidentally to the performance of a function was limited to a case where the DPP was acting as counsel or solicitor for an authority of the Commonwealth that was a party to a proceeding. The trial judge held that s 9(11) was inserted for more abundant caution and was not to be construed so as to prevent the general incidental power from authorising the giving of legal advice. The Full Federal Court observed (at 452) that it would be "usual and expected" for legal advice to be given in aid of the DPP's functions to an authority of the Commonwealth, notwithstanding that the authority was not a party to proceedings in the circumstances specified in s 9(11), but the matter was not one on which they were required to express a final view.

47 In my opinion that case is of little assistance to me in deciding the issues in the present case. Grofam shows that there may be occasions when it is correct to characterise the DPP as a lawyer giving privileged legal advice to a government authority, but the factual circumstances are clearly distinguishable from the present case, and the characterisation, as the provision of legal advice, of what occurred in that case appears to have been undisputed (see at 453). The defendants submitted that, since the relevant legislation had not been amended in the period between the Grofam decision and the events of 2001, and the case showed that there was some doubt as to the DPP's power to give legal advice in the absence of a relevant proceeding, I should infer that the DPP was not purporting to give legal advice in its communications with ASIC in 2001. I am not prepared to make such an inference. The trial judge in Grofam had held that the DPP had the requisite power, and the Full Federal Court's observations could be construed as supporting that conclusion.

The ASIC/DPP Memorandum of Understanding

48 The evidence before me on the application includes a copy of a document entitled "Memorandum of Understanding between the Australian Securities Commission and the Director of Public Prosecutions", dated 22 September 1992 ("the MoU"). When ASIC produced the MoU it sought a confidentiality order, and the defendants did not object. I made the order by consent. While I am concerned to preserve the confidentiality of the instrument against unnecessary disclosure, some parts of it are relevant to the issues I am now required to address, and have been discussed in open court. As far as I can see, the limited references I shall make to the instrument do not disclose anything confidential, but in any case I consider those references to be necessary for the purposes of this judgment.

49 The MoU deals with the working arrangements between ASIC and the DPP for the investigation and prosecution of serious corporate crime. It sets out guidelines to describe the operational arrangements, in time sequences to which it refers as the starting process, the investigation process and prosecution process.

50 The starting process is the responsibility of ASIC. Once ASIC has determined that it is appropriate to investigate the matter and that resources will be allocated to it, the investigation process begins.

51 The MoU identifies two phases in the investigation process. In the first phase ASIC develops an investigation plan (MoU at [3.2]), and informs the DPP of the details of the investigation and its future anticipated direction, civil or criminal, in order to keep the DPP informed rather than to involve the DPP in the detail of the investigation (MoU at [3.4]).

52 In the second phase, ASIC makes a "midway assessment" of the investigation and then takes an early informed decision ("the ASC proceedings decision") as to whether civil or criminal, or both processes should be seriously contemplated (MoU at [3.5]). In cases involving criminality, ASIC consults with the DPP when the ASC proceedings decision is under serious consideration. The DPP is provided with all relevant information and has full access to the relevant ASIC files and documentation, and ASIC informs the DPP of all contemplated civil actions (MoU at [3.6]). This consultation may lead to DPP advice as to the use of search warrants and similar criminal investigative techniques (MoU at [3.7]).

53 If the ASC proceedings decision is that criminal proceedings should be instituted and that ASIC has gathered substantial evidence to enable it to support that view, the MoU provides (at [4.1]) that ASIC is to seek the opinion of the DPP as to whether the matter should be referred to the DPP for criminal proceedings. If the DPP advises in writing that is appropriate to do so, ASIC will then refer the matter to the DPP (MoU at [4.2]). The DPP's letter is in the nature of the certification rather than an advice on evidence. Thereafter the DPP becomes the ultimate decision maker, though it will consult with ASIC (MoU at [4.3]). There are provisions in the MoU for continuing ASIC support after the handover to the DPP has occurred.

54 By and large, the MoU sets out administrative arrangements between two Commonwealth agencies whose functions overlap. Those arrangements include reports by ASIC to the DPP during the course of ASIC's investigation, and where criminality is thought to be involved, the issue by the DPP of an "opinion", which on closer examination is a kind of certificate given for administrative purposes and having administrative consequences, rather than an advice by an entity in the position of lawyer to an entity in the position of client. Advice more akin to lawyer/client advice is contemplated, however, in the specific instance of advice as to use of search warrants.

55 There is a dispute between the parties as to whether that document accurately describes the administrative arrangements in operation between ASIC and the DPP during 2001. The MoU was produced in answer to paragraph 3 of the defendants' 17th Notice to produce, which required production of the ASIC/DPP Memorandum of Understanding referred to in a letter from Mr Wood of ASIC to Mr Joliffe of the DPP dated 4 December 2001. In that letter Mr Wood referred to opinions by senior counsel as to possible proceedings against Messrs Rich, Keeling, Silbermann and Greaves seeking declarations of contravention and compensation orders, and said that it was ASIC's intention to institute those proceedings early in the following week. Mr Wood asked Mr Joliffe for his advice as to "whether DPP has any views in relation to the proposed civil proceedings in terms of the ASIC/DPP Memorandum of Understanding". Mr Wood also sought advice as to the effect, if any, of the proposed civil proceedings against Mr Silbermann upon the criminal brief with DPP and possible charges in relation to dealings with Toronto Dominion Bank and ABN Amro.

56 Senior counsel for ASIC informed the court that there was some doubt as to whether the MoU had in fact been followed, or fully followed, in relation to the One.Tel investigation. Senior counsel for the defendants invited me to conclude, for the purposes of the application, that the MoU was being acted upon in relation to One.Tel in 2001. He drew my attention to the "footer" of the copy of the MoU in fact produced by ASIC, which indicated that its source was ASIC's intranet and that the document was printed on 19 October 2004, suggesting that it was a current document for ASIC's internal purposes as late as October 2004.

57 I am not able to conclude, from the evidence before me, that the MoU was the sole or even the dominant statement of the administrative arrangements between ASIC and the DPP during 2001. It appears from Mr Wood's letter of 4 December 2001, however, that at that time (and, I infer, during 2001) the MoU was relevant to the administrative arrangements between the two agencies, although it may have been supplemented, or perhaps even superseded in some respects. Therefore, the MoU serves to establish that ASIC and the DPP had in place some operative administrative arrangements during 2001, under which it was expected that they would communicate on an inter agency basis, and not only as "lawyer" and "client", and that ASIC would notify the DPP of certain matters concerning its investigations.

Notices to produce relating to the MoU

58 After ASIC produced a copy of the MoU, pursuant to the 17th notice to produce, the defendants issued the 19th notice to produce, which sought documents evidencing various communications between ASIC and the DPP, including the investigation plan, the report on the first phase of the investigation, and the ASC proceedings decision, as contemplated by the MoU. ASIC made an application for relief from compliance with the 19th notice to produce but the application substantially failed. In my reasons for judgment published on 21 October 2004, I disagreed with a submission by ASIC, who said that the documents of which production was sought would be irrelevant because they would go to ASIC's reasoning processes for its decisions. I found that the documents had a potential relevance and significance because they might identify the time at which ASIC decided to use the search warrant materials for a purely civil purpose, and hence be relevant to the discretionary issues which the defendants wish to raise concerning the admissibility of those materials. I denied ASIC's application to be relieved from compliance, although I reserved for further consideration the question whether ASIC should be required to comply as regards documents created after December 2001.

59 The defendants issued the 24th notice to produce on 22 October 2004. It sought, in paragraphs 3 and 4, all written communications between ASIC and the DPP relating to possible criminal or civil proceedings, and any decision not to proceed with criminal charges, against One.Tel and the remaining two defendants, inter alia. ASIC made an application for an order relieving it from compliance with the obligation to produce documents under paragraphs 3 and 4 of the 24th notice, as regards any documents created after 7 December 2001. I rejected ASIC's application, on the ground that the two paragraphs in contention were directed to the nature of the criminal investigation and the time of its termination, and that these were relevant matters of potential significance, regardless of whether the criminal investigation came to an end in or before December 2001 or, say, in March or April 2002.

Claims for access and claims for privilege

60 Subsequently ASIC has produced documents in answer to paragraphs 3 and 4 of the 24th notice to produce, subject to a claim for privilege. The defendants have been supplied with masked copies of the documents. At first large portions of the documents were masked, but subsequently ASIC reviewed its position and decided to make some unmasked documents available, and to reduce the amount of masking in other documents.

61 Now there are 16 documents in contention. The defendants' application is for access to these documents. ASIC says that they are protected by client legal privilege ("legal advice privilege") and submits, therefore, that the defendants' application should be denied.

62 Mr Breckenridge, who provided evidence on behalf of ASIC concerning Documents 10 and 11, has given evidence about these 16 documents as well, by affidavit made on 3 November 2004. His evidence is that he has reviewed the masked and unmasked versions of the documents, and in annexure B to his affidavit, he gives what he describes as a fair description of the documents, including the contents of their masked parts. Paragraph 3 of his affidavit about these documents is substantially similar to paragraph 2 of his affidavit made on 2 November 2004 regarding Documents 10 and 11, which is discussed above.

63 Two questions have been addressed in evidence and submissions on the application: namely, whether the documents have the character of privileged documents, and whether privilege has been waived.

Whether the 16 documents are privileged communications

64 The evidence before me on the application includes communications between ASIC and DPP which are no longer subject to any claim for privilege, and some communications portions of which are still masked, although in some cases the quantity of masking has been reduced. Where masking has been removed or reduced, the defendants have put into evidence the various versions of the documents, so as to identify the portions that were at first masked and are now disclosed. For example, in several cases sentences in letters which asserted that documents such as draft affidavits or transcripts of examinations were enclosed, were originally masked, and then those sentences were unmasked, presumably on the view that evidence of the fact that privileged documents were enclosed should not itself be the subject of the claim for privilege.

65 The 16 documents appear, on perusal of the versions as currently masked, to be communications between officers of ASIC and officers of the DPP, principally on the subject of possible criminal charges against Mr Silbermann in connection with Toronto Dominion Bank and ABN Amro. I shall describe them in the context of other correspondence for which no privilege is claimed. I shall identify the 16 documents over which privilege is claimed by numbering them.

66 On 6 June 2001 Mr Hogan, a lawyer with ASIC, wrote to Mr Shaw, a lawyer who was then Senior Assistant Director of the Commercial Prosecutions Branch of the DPP. The letter refers to Mr Shaw's recent "discussions" with Mr Ms Redfern concerning One.Tel, and encloses the most recent draft affidavit of Mr Murdoch, and asks Mr Shaw to let Ms Redfern know if he has any "views". The references to "discussions" and "views" could refer to legal advice or administrative matters, although the communicating parties are lawyers. Correspondence up to 13 September 2001 retains this ambiguous character.

67 Thus, on 14 June 2001 Mr Hogan wrote again to Mr Shaw, updating him on developments in the asset freezing proceeding which was then under way, and enclosing copies of undertakings and Mr Murdoch's affidavit. On 20 July 2001 Mr Connor, a senior investigator with ASIC, wrote to Mr Shaw referring to telephone conversations and enclosing transcripts of examinations of Messrs Rich, Keeling and Silbermann and a draft list of relevant persons. Ms Marinos, a principal legal officer with the DPP, responded on 1 August 2001 asking for corrected transcripts of the examinations of Mr Rich and Mr Silbermann, saying she was preparing a summary of Mr Keeling's examination and commenting on the list of relevant persons. Mr Connor wrote to Mr Shaw on 7 September 2001 enclosing amended transcripts of examinations of Mr Rich and Mr Silbermann, a "briefing paper" regarding the Toronto Dominion Bank and ABN Amro facilities, draft statements by Mr Holmes and Ms Randall, and a file note by Mr Holmes regarding One.Tel's accounting system. Mr Connor said he would contact Mr Shaw to discuss these documents.

68 Ms Marinos wrote to Mr Connor on 12 September 2001 confirming a "conference" regarding the progress of ASIC's investigation and a "discussion" regarding the draft statements of Mr Holmes and Ms Randall. She noted that the investigation would be advancing in various specified ways and referred to the transcript of an interview conducted by ASIC with Mr Silbermann. She expressed the view that it would be inappropriate for the DPP's office to receive a copy of the statement given that Mr Silbermann was specifically under investigation. She returned a copy of the transcript and confirmed that no DPP officer had read it. This letter contains an expression of views on a legal question, but does not necessarily place the DPP in the position of lawyer advising a client, since the subject matter is whether a certain document should have been supplied to the DPP's office.

69 While the series of communications up to this time could be explained as communications between Commonwealth agencies with overlapping functions, pursuant to administrative arrangements for information-sharing and reporting along the lines of the MoU, they are also consistent with the idea that the DPP was occupying the role of lawyer, receiving documents and reports for the purpose of being placed in a position to give legal advice.

70 (1) Mr Shaw's letter to Mr Howell of ASIC dated 13 September 2001 is the first of the series containing a masked portion for which privilege is claimed. Mr Shaw refers to a meeting between himself and Ms Marinos of the DPP and Mr Connor and Mr Hogan. He says something about "Holmes and Randall" which is masked, and refers to the fact that the DPP had returned the transcript of "the Silbermann conversation", noting that Mr Silbermann was not cautioned, contrary to what had been agreed between him and Mr Howell in a telephone conversation prior to the interview. Mr Shaw said he would like to meet with Mr Howell "to discuss this matter and the future course of the investigation". In annexure B to his affidavit, Mr Breckenridge says that the masked section summarises legal advice given by the DPP to ASIC in a meeting, concerning (i) draft statements provided by ASIC, and (ii) what further draft statement should be provided by ASIC, and that the letter advises further on the need to obtain evidence regarding two matters concerning Mr Silbermann.

71 Here, and in respect of the other documents in contention, Mr Breckenridge gives evidence that the masked portion is "legal advice". As mentioned above, the defendants have attacked his evidence and have contended that such characterisations are unreliable. I have dealt with that criticism, but it is unnecessary, for the purpose of determining whether the masked portions of any of the 16 documents have a privileged character, to rely on Mr Breckenridge's description of that material as "legal advice". I accept his descriptive evidence of the content of masked portions of the documents. On the basis of that evidence, it is appropriate to infer that the letter of 13 September 2001 is a confidential communication created for the dominant purpose of the DPP providing legal advice to ASIC, concerning the preparation of evidence with a view to possible criminal charges.

72 On 25 September 2001 Mr Hogan wrote a letter to Mr Shaw headed "Brief to Advise - Mark Alan Silbermann". The letter enclosed a "brief to advise" in respect of Mr Silbermann's conduct concerning the covenant compliance reports issued by One.Tel to Toronto Dominion Bank and ABN Amro Australia. The letter invited Mr Shaw to consider the brief and proposed "further discussions". It also enclosed some orders obtained in the asset freezing proceeding.

73 The "brief to advise" is in evidence. Although there is that title on the cover page, the index page is headed "brief of evidence". The document gives a "general overview" of Mr Silbermann's role in One.Tel, summarises the investigation, refers to s 596 of the Corporations Law, summarises the ABN Amro and Toronto Dominion Bank facilities and covenants, attaches witness statements, a chronology and some draft charges, and makes some brief observations on "possible motivation". The document is not, in terms, addressed to the DPP, and it does not, in terms, seek advice on evidence or advice as to whether charges should be laid. Nevertheless it seems to me accurate to characterise the document as a "brief" which places the DPP in the role of being engaged to provide legal advice to ASIC concerning whether charges should be laid and concerning the adequacy of ASIC's evidence that purpose. In reaching this conclusion, I take into account Mr Breckenridge's evidence, the fact that the document was sent by an ASIC lawyer to a DPP lawyer, after the previous communications that I have summarised, and the fact that "further discussions" were proposed after Mr Shaw had been able to consider the brief. I also take into account the terms of the MoU, although it seems to me that this process of briefing on evidence is not a reflection of any of the steps that the MoU contemplates.

74 On 11 October 2001 Mr Hogan wrote a letter to Ms Marinos headed "Brief to Advise - Mark Alan Silbermann", confirming a meeting to discuss with other ASIC officers the financial information used in the preparation of the covenant compliance reports, and enclosing a report on that subject by one of the officers. He wrote another letter to her on the same day, saying that ASIC had prepared witness statements for its officers who participated in the execution of search warrants on 1 June 2001 at One.Tel's premises and the residences of some One.Tel directors, enclosing some 17 draft statements and asking Ms Marinos to peruse the drafts and confirm that she was "happy with their form" before the witnesses signed. In my view this letter constitutes a request for legal advice with respect to matters concerning the search warrants, notwithstanding the informal language that was used.

75 (2) On 18 October 2001 Ms Marinos wrote a letter to Mr Connor and Mr Hogan headed "One.Tel Ltd Brief to Advise - Mark Alan Silbermann". She referred to the brief submitted on 25 September and a preliminary conference. She said she had considered the brief and made certain observations. The observations run for over six pages and have been wholly masked. According to Mr Breckenridge's evidence, the masked portion records legal advice from the DPP to ASIC with respect to the brief, which he describes as a brief "to advise with respect to possible charges against Mr Silbermann under s 596 of the Corporations Act 2001, and ss 176A, 178BA and 178BB of the Crimes Act 1900". His evidence is that the subject matter of this communication relates to the question of adequacy of the evidence to support prosecutions under these sections, the identification of a factual issue and its degree of significance to any such prosecution, and comments concerning draft witness statements. In my opinion it is clear from the factual description of the content of the document, which I accept, and putting aside Mr Breckenridge's classification of it as "legal advice", that the document has the character of a privileged document. The fact that one of the persons to whom it was addressed was an investigator rather than a lawyer does not detract from this conclusion, since it is appropriate to see Mr Connor as one of the ASIC officers who was in the position of client for the purposes of the DPP's advice.

76 (3) On 22 October 2001 Ms Marinos wrote to Mr Connor and Mr Hogan, responding to the request for advice on the form of witness statements concerning execution of the search warrants. Her letter was again headed "One.Tel Ltd Brief to Advise - Mark Alan Silbermann". Almost all of it (over two pages) has been masked. According to Mr Breckenridge, the masked section of the letter records advice from the DPP to ASIC concerning amendments that should be made to draft witness statements before they were signed, production by officers of the Australian Federal Police in their respective witness statements of transcripts of tapes used during the execution of the search warrants, and advice as to whether and by whom search warrants should be produced. In my opinion Ms Marinos' letter, so described, has the character of a privileged communication.

77 (4) On 21 November 2001 Ms Marinos wrote a letter with the same heading, to Ms Redfern, Mr Connor and Mr Hogan. It is a short letter, but the whole of the substance has been masked, apart from the introductory reference to correspondence and a suggestion at the end of the letter that there be a meeting "to further discuss these issues". According to Mr Breckenridge, the masked section records legal advice given by the DPP to ASIC with respect to (i) the recording of further instructions on the redrafting of witness statements and "speaking further to certain witnesses" in light of the DPP's recent advice, (ii) identifying an issue to be addressed in evidence, the significance of that issue and whether it had so far been addressed in the draft statements, and (iii) advice as to whether the draft statements had addressed an issue and as to whether evidence would be required on that issue. It appears from this factual description that the masked portion is in the nature of further advice on evidence, and is privileged.

78 (5) The same conclusion applies to the facsimile version of the letter, which is also in evidence in masked form.

79 On 21 November 2001 Mr Connor wrote to Ms Marinos enclosing some computer disks containing the document database for the One.Tel investigation and the transcripts of examinations. On 23 November he sent her draft statements from Ms Randall and Mr McKelvey.

80 On 4 December 2001 Mr Connor wrote a letter to Ms Marinos headed "One.Tel Ltd ('One.Tel') Brief to Advise - Mark Alan Silbermann”. The letter, which is now unmasked, records the DPP's view that the central consideration to be addressed is the true financial position of One.Tel at the time of alleged misrepresentations, and that none of the draft statements submitted to the DPP had addressed that issue. It records ASIC's view that the relevant issue to address in relation to possible breaches of s 596 of the Corporations Law or ss 176A, 178BA and 178BB of the Crimes Act was Mr Silbermann's knowledge of the financial position of One.Tel at the time of the alleged misrepresentations. It records that this would be proved through documentary evidence and that ASIC did not intend to reconstruct One.Tel's accounts to determine the true financial position, as it was of the view that this would not be a necessary element of the possible offences. The letter invites Ms Marinos to confirm whether she agreed with that approach.

81 The letter from Mr Wood of ASIC to Mr Joliffe of the DPP, also dated 4 December 2001 and noted above, reports on Mr Pembroke QC's advice that civil penalty proceedings be commenced, and asks for "advice" on two matters. One is whether the DPP has any views in relation to the proposed civil proceeding "in terms of the ASIC/DPP Memorandum of Understanding", and the other is the effect, if any, of the proposed civil proceeding against Mr Silbermann upon the criminal brief with the DPP and possible charges in relation to his dealings with Toronto Dominion Bank and ABN Amro. The word "advice" appears to be used to cover both administrative advice pursuant to the MoU and legal advice on the effect of civil penalty proceedings on possible criminal charges.

82 On 14 December 2001 Mr Connor wrote to Ms Marinos enclosing amended draft statements and a computer disk containing records of examinations and voluntary interviews. The letter asked her to "advise" and on any further amendments to the statements. The letter confirms that Ms Marinos was occupying the position of lawyer advising on draft statements.

83 (6) On 24 December 2001 Ms Marinos wrote a letter to Mr Connor and Mr Hogan headed "One.Tel Ltd Brief to Advise - Mark Alan Silbermann", noting that they had sent her some further draft statements, which she had considered. She then purported to make some observations, comprising roughly four pages of text, most of which has been masked. The only part that is unmasked is a statement that until that time, consideration had been given to the adequacy of the evidence with respect to charges under s 596 of the Corporations Act and ss 176, 176A, 178BA and 178BB of the Crimes Act. According to Mr Breckenridge, the masked portions contain legal advice from the DPP to ASIC commenting on draft witness statements and advising as to amendments to them, advising on the significance of an identified issue and an element of the offence provisions mentioned in the unmasked portion, advising on the DPP's view about ASIC's proposal to prove that element, advising as to the standard of proof and certain factual elements of the charges, recording advice as to the need to identify particular sections of the existing evidence, advising as to the need to address a further evidentiary issue, and confirming discussions between ASIC and the DPP as to a particular piece of evidence to be relied upon in the prosecution case. Having regard to that factual description of the content of the letter, my view is that it has the character of a privileged communication.

84 (7) The evidence also includes a further copy of the same letter, which is likewise privileged.

85 On 29 January 2002 Mr Connor sent a facsimile to Ms Marinos attaching a draft statement from Mr Holmes. Privilege is no longer claimed, and the facsimile and draft statement are in evidence.

86 (8) On 12 February 2002 Mr Connor wrote a letter to Ms Marinos headed "One.Tel Ltd ('One.Tel')", referring to previous correspondence and a meeting on 5 February 2002. The substance of this communication has been masked, except for the statement that ASIC recommended that charges against Mr Silbermann in relation to the Toronto Dominion compliance report would not proceed. According to Mr Breckenridge, the masked sections of the letter record "historical instructions" provided by ASIC to the DPP in connection with a brief to advise to the DPP, and set out further instructions to the DPP and an opinion as to the significance of the facts that were the subject of the further instructions. In my opinion, on the basis of this factual description, the document has a privileged character. Although the masked section is apparently, in part, a historical record of instructions, the document contains further instructions and expressions of opinion, on legal matters, evidently casting the DPP in the position of lawyer advising ASIC as client.

87 On 26 February 2002 Mr Connor wrote to Ms Marinos enclosing various documents and draft statements for her review "in relation to a suspected breach concerning the ABN Amro Australia facility".

88 (9) On 4 March 2002 Ms Marinos sent a facsimile to Mr Connor headed "One.Tel Ltd Brief to Advise - Mark Silbermann", in which she confirmed oral advice given earlier that day. The whole substance of the facsimile is masked. According to Mr Breckenridge's evidence, the masked portion records legal advice from the DPP to ASIC with respect to a draft statement of a witness and amendments that had been made to it, and the facsimile also notes instructions from ASIC to the DPP with respect to that draft statement. When read in the light of the other correspondence discussed above, it is clear that the masked portion has the character of legal advice and is a privileged communication.

89 (10) On 5 March 2002 Ms Marinos sent a follow-up facsimile to Mr Connor, bearing the same heading, the whole substance of which is masked. According to Mr Breckenridge's evidence, the masked portion records legal advice from the DPP to ASIC with respect to other draft statements, and suggested amendments to them. It also has the character of a privileged communication.

90 (11) There is another facsimile to Ms Marinos to Mr Connor of the same date, which is identical to this one and is also therefore privileged.

91 (12) On 19 March 2002 Mr Hogan wrote to Ms Marinos, referring to her facsimiles of 4 and 5 March. The substance of the letter is masked, except the concluding sentence, which says that as stated in ASIC's letter of 12 February 2002, on the available evidence ASIC does not intend to lay charges in respect of the covenants provided to the Toronto Dominion Bank. According to Mr Breckenridge's evidence, the masked portion of this letter constitutes instructions from ASIC to the DPP as to the steps taken to make progress with various witness statements; the letter encloses amended proofs and elements for possible breaches of ss 178BA and 178BB of the Crimes Act; and it provides instructions with respect to information obtained from a witness concerning the intended operation of certain covenants between One.Tel and Toronto Dominion Bank. In the context provided by the other correspondence and the brief to advise, it is appropriate to infer that this letter was created as a confidential communication for the purpose of ASIC obtaining the DPP's advice, and therefore has a privileged character.

92 (13) On 4 April 2002 Ms Marinos sent a facsimile to Mr Connor with the heading "One.Tel Ltd Brief to Advise - Mark Silbermann", the whole substance of which has been masked. According to Mr Breckenridge's evidence, the masked portion of the facsimile records legal advice from the DPP to ASIC with respect to a further draft statement of Mr Holmes and suggested amendments to it. This falls into the same category as the facsimiles of 4 and 5 March 2002 and thus has the character of a privileged document.

93 On 28 May 2002 Mr Connor wrote to Mr Shaw of the DPP referring to a conversation on 17 May between Ms Marinos and himself relating to Mr Silbermann, and confirmed that ASIC did not intend to provide the signed statements of witnesses. On 3 July 2002 Mr Connor wrote to Mr Shaw enclosing various statements, listed in his letter. There is a virtually identical letter in evidence, dated 4 July 2002. On 22 July 2002 Ms Marinos sent a facsimile to Mr Connor seeking confirmation that she had all of the relevant documents and Mr Connor responded, in letter addressed to Mr Shaw, on the same day.

94 (14) The evidence before me on the application includes two versions of a document entitled "Investigative Phase Closure Report", one having slightly more masking than the other. The document is endorsed "date approved 24/06/2004". It is not apparent on the face of it whether the document was sent to the DPP or was an internal ASIC report. It relates to the investigation of the alleged provision of false financial information by Mr Silbermann to ABN Amro and Toronto Dominion Bank in April 2001, in the form of quarterly compliance reports.

95 Under the heading "Outcome", the following information appears:

"A brief of evidence in relation to a suspected breach of has been provided [sic] to the Director of Public Prosecutions. This was initially in relation to the provision of allegedly false financial information to ABN Amro and TD. After further investigation it became apparent that their [sic] was doubt in relation to the falsity of the information provided to TD by Silbermann. ASIC therefore provided guidance to the DPP that it did not intend to proceed on this aspect."

96 Then there is a masked portion, which according to Mr Breckenridge refers to legal advice provided to ASIC by Mr Macfarlan QC. It is then said that "proceeding with criminal charges against Silbermann may have caused a stay of the civil proceedings", and then the document says, after further masking:

"ASIC has determined that this matter should not proceed at this time. DPP had been formally advised of this."

97 In my opinion Mr Breckenridge's description establishes that the part of the report referring to Mr Macfarlan QC's advice has a privileged character.

98 (15) The evidence also includes two versions of a "No Further Action Report", which is endorsed "Date Processed 01/08/2002". There is nothing on its face to link it to the MoU or other inter agency administrative arrangements. The report relates to "action" described as "Criminal Action re: Silbermann - Breach of Directors" [sic]. The principal difference between the two versions of the reports is that in one case, everything under the heading "Project Background" has been masked, while in the other case, there is no masking in the material under that heading, which runs for well over a page. Both versions of the report record that "a brief of evidence was provided to the Commonwealth DPP for advice in relation to alleged breaches by Silbermann in relation to the provision of covenant certificates to ABN Amro and Toronto Dominion Bank". The less severely masked version says that "Following further evidence obtained in relation to Toronto Dominion, that may raise doubt as to the evidence relied upon, ASIC recommended that no further action be taken in relation to this draft charge", and it refers to the commencement of the present proceeding and the fact that advice was obtained from Mr Macfarlan, then concluding that "on the basis of the appropriateness of possible regulatory outcomes it was determined that no further action was to be taken in relation to the alleged criminal breaches by Silbermann".

99 (16) Finally, the evidence includes a three-page document headed "Minuting Chart for NECC and Enforcement Conference Meetings". There are masked sections of this document which, according to Mr Breckenridge, record details of matters other than the One.Tel investigation, which are of no relevance. I am prepared to accept Mr Breckenridge's evidence on this matter. In the circumstances it seems to me appropriate that information about other ASIC investigations, irrelevant to One.Tel, be masked.

Whether privilege has been waived in respect of all or any of the 16 documents

100 I have considered the principles concerning "disclosure" waiver on other occasions and it is unnecessary to repeat them: see, for example, my reasons for judgment with respect to Document 17: ASIC v Rich [2004] NSWSC 1090 (21 October 2004). In the context of the present application, ASIC restated its submission that in order for a disclosure waiver to occur, it is not enough that the document is produced in answer to a notice to produce or in the course of discovery; there needs to be some deploying of the document in court. I briefly noted that submission, contested by the defendants as a matter of law, in my judgment of 21 October 2004, and found it unnecessary to determine the issue of law. I was able to decide the question of disclosure waiver on that occasion by considering whether the disclosed material should be treated for relevant purposes as part of the same communication as the material withheld, or should be treated as a communication on the same subject matter as the material withheld. Once again, I find myself in a position to decide the disclosure waiver issues on this basis and therefore it is unnecessary for me to make a decision on the issue of law.

101 The defendants submit that there has been disclosure waiver in relation to the documents produced under the 24th notice to produce, for three reasons.

102 First, they say that the documents represent a course of communication between ASIC and the DPP on a single subject matter, of which ASIC has decided to disclose a great deal while attempting to withhold part. As to ASIC's partial disclosure, they refer to the unmasked portions of the 16 documents and those documents which are unmasked, and they also refer to Appendix B to Mr Breckenridge's affidavit and his answers in oral evidence, given without objection by ASIC (noting, as an example, Transcript p 2064-2065). The defendants submit that ASIC has acted inconsistently with the maintenance of confidentiality over the balance of the communications, citing Mann v Carnell (1999) 201 CLR 1 and Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 488.

103 It is true, as I have said, that the 16 documents and the unmasked documents to which I have referred represent a course of communication, and that there is a principal general subject matter, namely potential criminal charges against Mr Silbermann. But those facts are not enough, in my opinion, to create the inconsistency referred to in Mann v Carnell or the unfairness spoken of in Maurice's case and other cases.

104 Within a general subject matter such as "potential criminal charges against Mr Silbermann", a variety of issues may be raised. There is not necessarily any inconsistency or unfairness about disclosing communications on one issue but not another, or even disclosing communications on every issue except one. Within the general field of discourse between officers of ASIC and the DPP with respect to Mr Silbermann's dealings with Toronto Dominion Bank and ABN Amro, there was a series of communications about the preparation of a case against him for criminal prosecution and the adequacy of the evidence that would be relied upon to support such a case if charges were laid. The correspondence that is in evidence shows that ASIC approached the DPP for expert legal advice on the adequacy of the evidence and the preparation of charges. It was not merely dealing with the DPP pursuant to inter agency administrative arrangements. It placed the DPP in the position of lawyer for it as client, with respect to advice within the DPP's area of expertise. The communications between the officers of ASIC and the DPP that have been masked related to this process of obtaining legal advice. There is no inconsistency involved in withholding documents evidencing those communications while disclosing documents relating to the potential prosecution of Mr Silbermann which do not contain any such advice.

105 Secondly, the defendants claim that certain particular disclosures have given rise to waivers over specific documents. They make this submission with respect to five of the documents, namely documents (1), (4), (6), (8) and (12).

106 Document (1) The defendants say that so much of the communication has been unmasked that ASIC ought to be taken to have implicitly consented to the disclosure of the remainder (citing Garrat's Ltd v Thanga Thangathurai [2002] NSWSC 39 at [51]). The defendants say that document (1) discloses part of what occurred at a conference between Mr Shaw, Mr Marinos, Mr Connor and Mr Hogan on 10 September 2001, and that there is also some disclosure of the content of that conference in Ms Marinos' letter to Mr Connor of 12 September 2000, and when these are put together, ASIC has disclosed the substance of what occurred at the conference and cannot now, consistent with that disclosure, maintain confidentiality in whatever (if anything) remains. They also rely on s 126 of the Evidence Act, on the basis that seeing the masked portion of the document is reasonably necessary to enable a proper understanding of the balance.

107 I disagree with these submissions. The evidence is that the masked portion summarises comments by Mr Shaw at a meeting (presumably the meeting of 10 September) on draft statements and the need to obtain further evidence, falling within the general category of advice on evidence by the DPP. It is a separate topic from the parts of the letter that have been disclosed. The fact that Mr Shaw's advice on these matters was in a meeting dealing with other subjects that have been disclosed, does not create any inconsistency or lead to the application of s 126.

108 Document (4) The defendants say that the substance of the communication contained in this document was disclosed by ASIC, by producing Mr Connor's letter to Ms Marinos dated 4 December 2001. Specifically, they claim that the second paragraph of the letter of 4 December 2001 sets out the substance of what was said in the letter of 21 November 2001 (citing Ampolex v Perpetual Trustee Co Ltd (1996) 40 NSWLR 15 at 18). They also contend that s 126 applies. I accept these submissions to a limited extent, and otherwise I reject them.

109 The evidence indicates that the content of document (4) related to advice on evidentiary matters. One of those matters involved Ms Marinos identifying an issue and advising that it should be addressed in evidence, and considering whether the draft statements had addressed it. As I construe the documents, this issue is now disclosed in the unmasked letter of 4 December 2001, the issue being the true financial position of One.Tel at the time of the alleged misrepresentations, and the view of Ms Marinos that none of the draft statements had addressed it. Privilege has been waived over that part of document (4). I note that ASIC has accepted this conclusion, in its written submission (AS 29, para 2(b)). However, the subjects referred to by Mr Breckenridge in Annexure B to his affidavit as matters (1) and (3) have not been disclosed by the letter of 4 December 2001, and it appears from Mr Breckenridge's description that they are distinct subjects.

110 Document (6) The defendants submit that part of the allegedly privileged communication has been disclosed by ASIC, and having disclosed so much, ASIC has acted inconsistently with the maintenance of confidentiality over the remainder, which deals with the same subject matter as the part disclosed. They also invoke s 126 of the Evidence Act, saying that one needs to see the balance of the document in order properly to understand what "consideration" as to "the adequacy of the evidence gathered so far" is being referred to in the disclosed part.

111 What has been disclosed, as indicated above, is a part of the letter referring to some draft statements that had been forwarded, and saying that Ms Marinos had considered them, and a part of the letter stating that consideration had been given to the adequacy of the evidence gathered so far, with respect to charges under certain stated provisions of the Corporations Act and the Crimes Act. Those are statements of fact about the steps that have been taken, but they do not disclose in any way a distinct subject matter, namely the content of the advice that has been given (that is, advice as to the subjects identified by Mr Breckenridge in his description of this document). I do not see in that disclosure anything inconsistent with the maintenance of confidentiality over the advice itself, or any need to disclose the balance of the document in order properly to understand what has been disclosed. A statement by a person of the fact that he or she has considered certain things does not lead to any obligation to disclose the content of the consideration, by way of legal advice, given to those things, even if the statement and the advice are found in the same document.

112 Document (8) The defendants submit that it is evident that the letter of 12 February 2002 deals with the single subject of possible criminal proceedings against Mr Silbermann. This is consistent with the oral evidence of Mr Breckenridge (at Transcript p 2067.39-2068.5) to the effect that the masked sections of the documents deal with criminal rather than civil provisions and the only possible contraventions of the criminal law dealt with in the documents are possible contraventions by Mr Silbermann. It is also consistent with the part of the letter that is not masked. The defendants say that ASIC has disclosed only part of the communication on that single subject, and its conduct is inconsistent with the maintenance of confidentiality of the remainder. They also invoke s 126, on the ground that one needs to see the remainder of the letter in order properly to understand

113 Again, I disagree with these submissions. ASIC has disclosed evidence of the fact that it recommended that charges against Mr Silbermann in relation to the Toronto Dominion matter would not proceed, evidently in response to paragraph 4 the 24th notice to produce, which required production of documents recording or evidencing a decision not to proceed with criminal charges. It has not disclosed its instructions and observations as client to the DPP as its lawyer concerning the subjects identified by Mr Breckenridge in his description of this document.

114 I see nothing in the disclosure of its decision not to proceed with criminal charges against Mr Silbermann that is inconsistent with the maintenance of confidentiality with respect to instructions it has given to the DPP for the purpose of obtaining the DPP's advice as to appropriate charges and the adequacy of evidence in Mr Silbermann's case. The decision and instructions relate to the same general subject matter, namely possible criminal proceedings against Mr Silbermann in respect to the Toronto Dominion compliance report, but they relate to different specific topics, such that disclosure of one topic does not, in my view, constitute a partial disclosure requiring that the other topic, privileged in character, be disclosed. Nor, in my opinion, is it correct to say, for the purposes of s 126, that it is reasonably necessary to have access to the "historical instructions" by ASIC to the DPP, on the other matters identified by Mr Breckenridge in his description of the document, in order to understand the fact that ASIC has recommended that charges against Mr Silbermann in relation to the Toronto Dominion compliance report would not proceed or that ASIC did not intend to lay charges in respect of the covenants provided to the Toronto Dominion Bank.

115 Document (12) The defendants say that the letter of 19 March 2002, masked except for the concluding sentence, attracts the same consideration as document (8); that is, they contend that ASIC has disclosed sufficient of the content of the letter that it is inconsistent for it to seek to retain confidentiality over the remainder. In my opinion this submission fails, for the reasons given in respect of document (8).

116 Thirdly, the defendants contend that ASIC has disclosed the substance of those parts of the course of communication between it and the DPP which it has withheld, in the unmasked portions of the Investigative Phase Closure Report, which is document (14). They place particular emphasis on the passage from the Report that I have extracted in my discussion of document (14). That passage goes further than the brief to advise and documents (8) and (12), in that it discloses not only ASIC's decision not to proceed with criminal charges against Mr Silbermann, but also that the brief initially related to the provision of allegedly false information to ABN Amro and Toronto Dominion, and that after further investigation, it became apparent that there was doubt in relation to the falsity of the information provided by Mr Silbermann to Toronto Dominion.

117 These matters relate to ASIC's decision not to proceed with criminal charges, rather than to the content of its observations and instructions to the DPP. In my opinion disclosure of these matters does not require disclosure of the content of ASIC's instructions and observations to the DPP or the content of the DPP's advice to ASIC.

Ms Redfern's back-up e-mails

118 ASIC has produced two bundles of documents retrieved from its back-up files for Ms Redfern's e-mails, one bundle containing documents over which it claims privilege and the other bundle containing documents to which the defendants have been granted access. The parties have disagreed as to whether particular documents or masked parts of documents are privileged, but the area of disagreement has been reduced, as a result of compromises on both sides and for other reasons. There are now only three documents in contention. They are described in Mr Breckenridge's affidavit on this subject made on 3 November 2004.

119 According to that description, the documents are as follows:

120 The defendants' submission with respect to the e-mail of 4 June 2001 is that ASIC has not discharged its onus of establishing that the e-mail was written by Ms Redfern in her capacity as a solicitor providing legal advice (or legal services in connection with litigation) to ASIC, as distinct from her capacity as Deputy Director Enforcement. The defendants note that Ms Redfern has given no evidence, and Mr Breckenridge has given no evidence on that matter, and they say there is nothing about the description which will allow the court to reach the conclusion on the balance of probabilities that it was written in one capacity rather than the other.

121 In my opinion ASIC has done enough to establish that the e-mail of 4 June 2001 is protected partly by litigation privilege and partly by legal advice privilege. The evidence before me on the present application, which includes Ms Redfern's affidavit, shows that the e-mail was written by a person who at that time occupied the position of lawyer employed by ASIC (who did not commence in the position of Deputy Director Enforcement until 1 July 2001), to other ASIC officers. The subject matter related partly to the asset preservation proceeding that was under way at the time. It is appropriate to infer, and I do infer, that such a communication was, to that extent, a confidential communication between a lawyer acting for ASIC and officers of ASIC that was made for the dominant purpose of ASIC being provided with professional legal services in relation to the asset preservation proceeding, those services being in the nature of advice with respect to proposed orders.

122 The e-mail also related to the conducting of examinations of directors and views following an interview with Mr Murdoch. Although it would be possible to address purely administrative aspects of these topics, Mr Breckenridge's evidence that the e-mail "deals with" these topics, without any qualification to their administrative aspects, when coupled with the fact that Ms Redfern occupied the position of New South Wales General Counsel for ASIC at the time, implies in my view that the content of the e-mail concerning these topics is of a kind that would be addressed in advice on evidence in the course of an investigation, and is therefore a confidential communication made between a lawyer and officers of the client, ASIC, for the dominant purpose of the lawyer providing legal advice to the client.

123 The defendants make a similar submission with respect to the e-mail of 25 September 2001. They say it contains no indication either in the unmasked portion of the document or in the description given by Mr Breckenridge in his affidavit, that it was written by Ms Redfern in the capacity of a solicitor giving advice to ASIC as her client.

124 By September 2001 Ms Redfern occupied dual positions as lawyer and administrator, according to her affidavit evidence (which is conveniently summarised in paragraphs [6] and [17] of Hamilton J's judgment). The subject matter of the masked portion is said to be Ms Redfern's views on the information already given to ASIC by a particular examinee. It seems to me probable that views expressed by a person occupying, inter alia, the position of lawyer, to an officer of ASIC (who would be her client when she acted in her capacity as lawyer), expressing her "views" on information given by an examinee, in the context of an ASIC investigation on the general subject of "One.Tel", are views in the nature of legal advice on evidence by a lawyer rather than views expressed by her in her administrative capacity.

125 As to the e-mail of 6 December 2001, the defendants say that the only evidence before the court is Mr Breckenridge's description in his affidavit. The description refers to short minutes of order and a statement of claim, which would not seem to be privileged, according to the defendants' submission. As to the memorandum from Mr Brereton SC and Mr Stack to which the description refers, the defendants point out that there is no evidence as to its contents, nor any evidence as to the purpose of the communication.

126 I agree with the defendants' submissions on this point. It would only be the attached memorandum from counsel that might render the communication privileged, as is not suggested that the short minutes of order or the statement of claim were merely drafts for consideration. Yet there is nothing to indicate that the memorandum from counsel was a memorandum of advice, as opposed (for example) to a memorandum of fees or a note of available dates. ASIC's claim to privilege is rendered more difficult by the fact that the date of the e-mail is earlier than the date of the documents identified by Mr Breckenridge, but when this was raised with him in cross-examination, he confirmed that his description was accurate. In my opinion ASIC has not shown that this document is privileged.

127 There is no ground for finding that ASIC's privilege in respect of the e-mails of 4 June 2001 and 25 September 2001 has been waived, having regard to my reasoning and conclusions concerning Documents 10 and 11.

Conclusions

128 Hamilton J has held that Documents 10 and 11 are privileged, and in my view, there has been no waiver of privilege.

129 In my opinion, the documents produced under the 24th notice to produce and now in contention are privileged, and there has been no waiver of privilege, except with respect to part of the letter from Ms Marinos to Ms Redfern and others dated 21 October 2001 (document (4)), that part being item (2) of Mr Breckenridge's description of this document.

130 As to Ms Redfern's back-up e-mails, my opinion is that the e-mails of 4 June 2001 and 25 September 2001 are privileged and there has been no waiver of privilege in respect of them, but privilege has not been established in respect of the e-mail of 6 December 2001.

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Last Modified: 11/17/2004

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Citations

ASIC v Rich [2004] NSWSC 1089

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CITATION:	ASIC v Rich [2004] NSWSC 1089
HEARING DATE(S):	4, 5, 8 November 2004 (and written submissions)
JUDGMENT DATE:	16 November 2004
JURISDICTION:	Equity
JUDGMENT OF:	Austin J
DECISION:	Claims for privilege upheld except in respect of one document, and part of another.
CATCHWORDS:	EVIDENCE - client legal privilege - whether client/lawyer relationship existed between Commonwealth DPP and ASIC - whether communications were privileged, where made between legal officers of DPP and ASIC, and between legal/enforcement officer of ASIC and other ASIC officers - waiver of privilege - issue waiver where ASIC puts in issue its state of mind - disclosure waiver in cases of "partial" disclosure
LEGISLATION CITED:	Evidence Act 1995 (NSW) s 126
CASES CITED:	Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 Ampolex v Perpetual Trustee Co Ltd (1996) 40 NSWLR 15 ASIC v Rich [2004] NSWSC 1017 ASIC v Rich [2004] NSWSC 969 Attorney-General (NT) v Kearney (1985) 158 CLR 500 Attorney-General (NT) v Maurice (1986) 161 CLR 475 Baker v Campbell (1983) 153 CLR 52 Garrat's Ltd v Thanga Thangathurai [2002] NSWSC 39 Grant v Downs (1976) 135 CLR 674 Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445 Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27 Mann v Carnell (1999) 201 CLR 1 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398 Southern Equities Corporation Ltd v Arthur Andersen & Co (1997) 70 SASR 166 Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 Waterford v The Commonwealth of Australia (1987) 163 CLR 54
PARTIES :	Australian Securities and Investments Commission (P) John David Rich (D1) Mark Alan Silbermann (D4)
FILE NUMBER(S):	SC 5934/01
COUNSEL:	R B S Macfarlan QC with J P A Durack SC, N J Beaumont and J E O'Sullivan (P) D L Williams SC with M J Steele and S A Goodman (D1, D4)
SOLICITORS:	Jan Redfern, Solicitor for Australian Securities and Investments Commission (P) Joanne Kelly, Solicitor (D1, D4)