AWB Limited v Honourable Terence Rhoderic Hudson Cole Ao RFD QC (No 3)

[2006] FCA 1031

FEDERAL COURT OF AUSTRALIA

AWB Limited v Honourable Terence Rhoderic Hudson Cole AO RFD QC (No 3) [2006] FCA 1031

AWB LIMITED (ACN 081 890 459) v THE HONOURABLE TERENCE RHODERIC HUDSON COLE AO RFD QC AND COMMONWEALTH OF AUSTRALIA
VID 594 OF 2006

YOUNG J
9 AUGUST 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 594 OF 2006

BETWEEN:

AWB LIMITED (ACN 081 890 459)
Applicant

AND:

THE HONOURABLE TERENCE RHODERIC HUDSON COLE AO RFD QC
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	YOUNG J
DATE OF ORDER:	9 AUGUST 2006
WHERE MADE:	MELBOURNE

UPON THE APPLICANT BY ITS COUNSEL UNDERTAKING TO THE COURT:

(a)to submit to such order (if any) as the Court may consider to be just for the payment of any compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of this order or any continuation (with or without variation) thereof; and

(b)to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:

1.1Until 4.30pm on Thursday 10 August 2006, the First Respondent be restrained from publishing or disclosing any of the documents or statements referred to in Exhibit JM-C4 to the affidavit of John Mitchell sworn 9 August 2006.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 594 OF 2006

BETWEEN:

AWB LIMITED (ACN 081 890 459)
Applicant

AND:

THE HONOURABLE TERENCE RHODERIC HUDSON COLE AO RFD QC
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	YOUNG J
DATE:	9 AUGUST 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. I have made an interim order on the ex parte application of the applicant, AWB Limited (‘AWB’).  The order restrains the First Respondent from publishing or disclosing certain documents and statements which have been produced to the Commission of Inquiry (‘the Inquiry’) until 4.00 pm tomorrow.

2. AWB’s application was supported by an affidavit of John Mitchell sworn 9 August 2006.   In addition, the application was supported by the tender of a letter dated 9 August 2006 from the solicitor assisting the Inquiry to Mr John Mitchell of Arnold Bloch Leibler, the solicitors for AWB.  The letter was received by AWB’s solicitors in Court very shortly before the ex parte application was made.  The letter stated, inter alia, that the Inquiry proposed to publish exhibit 1020 to the Inquiry at 4.30 pm on 9 August 2006.  In the circumstances, for reasons which I will describe, I made an interim order to preserve the status quo until AWB’s application could be properly argued and considered.

3. The documents that the Inquiry proposes to publish are, I was told, those listed in exhibit JM-C4 to the affidavit of Mr Mitchell.  Essentially those documents consist of draft statements of contrition that are no longer the subject of a claim for legal professional privilege, but which contain various references to the existence of legal advice obtained by AWB. 

4. In the current proceedings before me, one of the principal issues is whether disclosures made by AWB to the Inquiry have resulted in an imputed waiver of privilege that AWB claims over other documents by AWB.  Those other documents have not been produced to the Inquiry and are the subject of a claim for legal professional privilege in these proceedings.

5. AWB has argued in this proceeding that disclosures to the Inquiry under its compulsory processes are to be seen in a special light as disclosures made under compulsion or, at least, in circumstances which may be seen to fall outside that category of disclosure which would found an imputed waiver.  AWB also submits that disclosures made to the Inquiry on the basis of a claim for confidentiality also fall outside the category of disclosures that would attract the doctrine of imputed waiver.  The affidavit of Mr Mitchell indicates that AWB wishes to raise a claim of confidentiality in respect of the documents in exhibit JM-C4, but AWB has not yet had an opportunity of mounting such a claim.

6. In these circumstances, AWB submits that it will suffer prejudice if the documents in exhibit JM-C4 are published to the general public by the Inquiry this afternoon.  It says that publication would deny it the right to seek an order for confidentiality from the Commission and may adversely affect its claim for legal professional privilege in these proceedings.  In particular, it claims that disclosures to the Inquiry stand on a different footing than general public disclosures and that AWB’s claims for relief might be impaired or weakened by the actions that the Inquiry proposes to take this afternoon.  AWB also submits that as these issues are presently under consideration by this Court, the threatened publication of those documents by the Inquiry may constitute a contempt of Court. 

7. Having regard to these submissions, there is at least some foundation for the proposition that AWB will suffer prejudice if the publication of the documents goes ahead at 4.30 pm this afternoon.  On the other hand, there is before me no material indicating that the Inquiry will be inconvenienced or prejudiced in any way if the publication is deferred until the matter can be properly considered by the Court. 

8. In all the circumstances I consider that it is a proper exercise of the Court’s discretion to preserve the status quo until these matters can be properly considered by the Court.  Accordingly, I have made the interim order sought by AWB, limited to continue only until 4.30 pm tomorrow.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young.

Associate:

Dated:       10 August 2006

Counsel for the Applicant:	J Judd QC, P Corbett and Dr S McNicol
Solicitor for the Applicant:	Arnold Bloch Leibler
Counsel for the First Respondent:	There was no appearance for the First Respondent
Counsel for the Second Respondent:	I Harrison SC and NJ Beaumont
Solicitor for the Second Respondent:	Australian Government Solicitor
Date of Hearing:	9 August 2006
Date of Judgment:	9 August 2006