Bolton and Australian Securities and Investments Commission - [2022] AATA 4215

Bolton and Australian Securities and Investments Commission [2022] AATA 4215 (7 December 2022)
Division:TAXATION AND COMMERCIAL DIVISION
File Number: 2015/6020
Re:Nicholas Bolton
APPLICANT

AndAustralian Securities and Investments Commission
RESPONDENT

Decision
Tribunal:The Hon. Matthew Groom, Senior Member
Date:7 December 2022
Place:Melbourne

The Tribunal decides as follows:
1.the respondent’s objection to the applicant’s inspection of produced category A documents, as set out in the respondent’s schedule of objections, be upheld save for the following: JLLF-3 at pages 7 through to 13; ASIC-JL-16; ASIC-JL- 24; last two pages of ASIC-RE-4; first page of ASIC-RE-5; ASIC-RE-6; ASIC-RE-7; ASIC-RE-9; ASIC-BM-15; ASIC-BM-16; ASIC-BM-17; ASIC-BM-18; ASIC-BM-19; ASIC-BM-20; ASIC-BM-21; email dated 17 June 2016 included in ASIC-BM-22; email dated 17 June 2016 included in ASIC-BM-23; email dated 17 June 2016 included in ASIC-BM-24; email dated 17 June 2016 included in ASIC-BM-25; email dated 17 June 2016 included in ASIC-BM-26; and email dated 17 June 2016 included in ASIC-BM-27;
2.that the applicant be provided access to inspect the category B documents; and
3.that the category C documents are not relevant to the issues in dispute and no inspection is granted to the applicant.

............................[sdg]............................................
The Hon. Matthew Groom, Senior Member
Catchwords
PRACTICE AND PROCEDURE – access to documents – three categories of objections considered – whether documents subject to professional legal privilege claims – whether Harman implied undertaking claims apply – whether the documents are of relevance – partial release of documents to applicant allowed for access and inspection
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Corporations Act 2001 (Cth)
Cases
Australian Securities & Investments Commission (ASIC) v Southcorp Ltd (2003) 46 ACSR 438
Bolton and Australian Securities and Investments Commission [2018] AATA 4640
Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 398
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Oswal v Commissioner of Taxation (No 4) [2016] FCA 666
REASONS FOR DECISION

The substantial issue in this matter involves the applicant seeking a review of a decision made by a delegate of the respondent on or about 6 October 2015 to disqualify him from managing corporations for a period of three years pursuant to section 206F of the Corporations Act 2001 (Cth) (“the Corporations Act”).
The disqualification decision arose out of a series of claims made by the respondent against the applicant in relation to his role in the management of a number of companies of which he was a director, and which were subsequently wound up with deficiencies in assets.
The matter has a very substantial procedural history. It is not necessary for present purposes to summarise that history in any detail other than to note that:
(a)a substantive hearing in the matter was commenced and then subsequently adjourned in order to address a number of procedural issues;
(b)on 16 November 2020 the matter was summarily dismissed by a Tribunal differently constituted; and
(c)on 22 October 2021 the Tribunal, as presently constituted, granted an application to reinstate the matter pursuant to section 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”).
Following the decision to reinstate, the Tribunal made a direction on 10 November 2021, which permitted the applicant to seek the production of additional documents from the respondent and three liquidators of companies of which the applicant was a former director namely, Mr John Lindholm, Ms Robyn Erskine and Mr Brent Morgan. Each of the liquidators have previously prepared affidavits in 2016 that have been filed in these proceedings and will be called as witnesses at the resumed substantial hearing.[1]
[1] Relevant affidavits lodged in the proceedings include the affidavits of John Ross Lindholm dated 6 May 2016 and 20 June 2016; the affidavit of Robyn-Lee Erskine dated 6 May 2016; and the affidavit of Brent Leigh Morgan dated 22 June 2016.
The applicant subsequently sought the additional documents from the respondent and the liquidators through a combination of informal requests, as well as a formally issued summons.
In response to the applicant’s requests and summons, a significant number of additional documents have been produced. Those documents can be broadly categorised as correspondence between the respondent and each of the liquidators (together with their annexures), as well as other documents held on the liquidators’ files.
The respondent subsequently objected to the applicant inspecting a number of the produced documents lodged with the Tribunal pursuant to the requests and summons. Those objections can be divided into three distinct categories, namely:
(a)documents that the respondent claims are subject to legal professional privilege either in whole or in part (“category A documents”);
(b)documents that the respondent claims are subject to the Harman implied undertaking in respect of separate Federal Court proceedings since discontinued (“category B documents”); and
(c)documents that the respondent claims are not relevant to the proceedings (“category C documents”).
It should be acknowledged that the respondent has not objected to the applicant inspecting the bulk of the documents produced, nor has the respondent objected to the applicant inspecting documents produced by the liquidators (as opposed to the respondent itself) where the only concern is one of relevance.
The applicant continues to seek the opportunity to inspect all of the produced documents, subject only to a legitimate claim of legal professional privilege.
An interlocutory hearing was held on Thursday 25 August 2022 and Friday 26 August 2022 to hear oral submissions in relation to the procedural issue. The parties also filed written submissions prior to the hearing.
The interlocutory hearing also considered a separate procedural issue, namely, whether the Tribunal would allow a number of Takeovers Panel findings to be received into evidence in the proceedings. At the conclusion of the hearing the Tribunal decided that it would allow the Takeover Panels findings to be received into evidence and gave oral reasons for doing so. For present purposes, it is not necessary to expand on that separate issue any further in these written reasons.
Following the conclusion of the interlocutory hearing, the respondent provided the Tribunal with a hard copy of each of the produced documents, to which the respondent maintains an objection to the applicant’s inspection. The respondent also provided the Tribunal with a schedule which summarises the basis upon which the respondent maintains its objections, together with a brief description of the documents (the respondent’s “schedule of objections”).
The schedule of objections divides the documents into three groupings in respect of each of the relevant liquidators, and then into sub-groupings, as follows:
(a)Correspondence and other documents of/to/from-John Lindholm, Ferrier Hodgson:
(i)Documents from soft-copy file produced to the Tribunal by John Lindholm; and
(ii)Correspondence (and attachments) to/from John Lindholm, Ferrier Hodgson held by ASIC.
(b)Correspondence and other documents of/to/from-Robyn Erskine, Brooke Bird:
(i)Documents from hard-copy file produced to the Tribunal by Robyn Erskine, Brooke Bird; and
(ii)Correspondence (and attachments) to/from Robyn Erskine, Brooke Bird held by ASIC.
(c)Correspondence and other documents of/to/from Brent Morgan, Rodgers Reidy:
(i)Documents from soft-copy file produced to the Tribunal by Brent Morgan, Rodgers Reidy; and
(ii)Correspondence (and attachments) to/from Brent Morgan, Rodgers Reidy held by ASIC.
The Tribunal has carefully considered each of the respondent’s objections as set out in the schedule of objections. The Tribunal’s specific conclusions in respect of each of the claims are set out below. For the purpose of these written reasons, the Tribunal has adopted the categories of objection and document descriptors as set out in the respondent’s schedule of objections.
Privilege claims
The respondent objects to the applicant’s inspection of the category A documents in its schedule of objections on the grounds of privilege.
As noted at the interlocutory hearing, in giving consideration to each of the objections claimed by the respondent in respect of the produced documents on the basis of privilege, the Tribunal agrees with and has adopted the principles as set out by former Deputy President Forgie in her 29 November 2018 decision.[2] That decision was in respect of these same proceedings and addressed various claims of legal professional privilege, as well as the obligation of the respondent to lodge certain documents under sections 37 and 38AA of the Act. Those principles, as articulated by Deputy President Forgie in her November 2018 decision, include the following:[3]
[56] Documentation generated by an expert witness in the course of drafting his or her report that does not contain a communication does not attract legal professional privilege. A necessary basis for a claim of legal professional privilege is that it is made in relation to a communication for the relevant purpose regardless of the form which that communication took or however it is recorded. It follows that working papers prepared by an expert in the course of preparing a report and other documents to which he or she might make reference but which are not the subject of communications between him or her and a solicitor or another person requesting the report for the relevant purpose are not subject to legal professional privilege. (Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No. 1) (1999) 1 Qd R 141 at 161-162 per Thomas J and see also 148-150 and 156 per Pincus JA and 162 per de Jersey J agreeing with both).
[57] The person entitled to claim legal professional privilege may waive it, either intentionally or by implication… (Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ and at 493; 43 per Deane J).
[58] The mere fact of disclosure to a third person though, does not of itself amount to waiver (Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 at 355 per Jordan CJ cited with approval in Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378 at [30]; 14; 95; 385 per Gleeson CJ, Gaudron, Gummow and Callinan JJ)
…
In the same way, mere reference to legal advice in another document such as pleadings in civil litigation does not of itself amount to waiver of the privilege although full disclosure of its contents will: Attorney-General (NT) v Maurice ((1986) 161 CLR 475; 69 ALR 31 at 481; 34 per Gibbs CJ).
(Footnotes included.)
[2] Bolton and Australian Securities and Investments Commission [2018] AATA 4640.
[3] Ibid.
The Tribunal also accepts and adopts the following general principles regarding privilege and waiver as described in the respondent’s written submissions which, in the Tribunal’s view, are consistent with Deputy President Forgie’s November 2018 decision and accurately reflects the law:
[13] Privilege will arise in respect of communications and documents brought into existence for the dominant purpose of the provision of legal advice or for use in legal proceedings (advice privilege) (Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 per Gleeson CJ, Gaudron and Gummow JJ (at [35])). It will also include communications and documents passing between a party’s solicitor and a third party, where they are made/prepared when litigation is anticipated or commenced for the purpose of the litigation with a view to obtaining advice as to it, evidence to be used in it or information which may result in the obtaining of such evidence (litigation privilege) (Trade Practices Commission v Sterling (1979) 36 FLR 244 (at 246))…
[14] Implied waiver in respect of expert reports is merely a subset of waiver of privilege more generally. A waiver will occur where the conduct of the relevant client (in whose favour the privilege arises) is inconsistent with the maintenance of the confidentiality of the material. The assessment of whether conduct is inconsistent, where necessary, is informed by considerations of fairness (Kentish Council v Bellenjuc Pty Ltd (2011) 211 Tas R 189 (Kentish), [14] citing Mann v Carnell (1999) 201 CLR 1). In respect of expert evidence, the crucial inconsistency (and associated unfairness) arises in circumstances where the person asserting privilege uses privileged material to “influence the content” of a report or proof of evidence and that material is not produced to the other party (Kentish, at [32]).
(Footnotes included.)
In her November 2018 decision, Deputy President Forgie also addressed the question of whether a liquidator giving evidence in the proceeding does so as an independent expert or in another capacity. This was also an issue of some contention at the interlocutory hearing before this Tribunal. Deputy President Forgie ultimately concluded that a liquidator was not giving evidence as an independent expert in the strict sense notwithstanding the fact that some of the evidence they may give in the proceeding, either in the form of a report prepared pursuant to their obligations under the Corporations Act, in their affidavit material or in their evidence at the hearing itself, will include opinions they have formed in their professional role as a liquidator and that have been reached with the benefit of their qualifications, training and experience. With respect to another liquidator involved in these proceedings, Mr Gary Fettes, Deputy President Forgie concluded as follows:[4]
[75] …In this case, Mr Fettes expressed the opinion in his s 533 report that a person who had taken part in the formation, promotion, administration, management or winding up of the company might have committed negligence, default, breach of duty or breach of the Act with particular reference to ss 180, 286/344(1) and 588G(1) and (2). There is no doubt that, in exercising his duties and performing his functions as liquidator, Mr Fettes was practising his profession which required special qualifications, training and experience. He made his decisions and expressed his recommendations in light of his qualifications, training and experience based on what he found in the course of exercising his powers and functions and performing his duties. He did not form it as an expert who is independent of the decisions that have, or have not, been made in the course of the external administration. Without in any way wishing to disparage the independence of mind that Mr Fettes has, and would, attempt to bring to the task of giving independent expert evidence, he will be perceived as influenced, and understandably so, by the fact that he is giving evidence on matters such as breach of the provisions of the Corporations Act on which he had already expressed his opinion in his role as liquidator.
(Footnotes omitted.)
[4] Ibid.
Again, the Tribunal agrees with and adopts Deputy President Forgie’s conclusion and reasoning on this point. With respect to each of the liquidators relevant to the immediate issue for determination by this Tribunal they are, as was the case with Mr Fettes, being called to give evidence about the conclusions they have reached and opinions they hold regarding the companies’ state of affairs, the management of the companies and potential breaches of the Corporations Act.[5] Those conclusions and opinions have been reached in their professional capacity as liquidators, and it is those conclusions and opinions that the liquidators have or are being asked to give evidence on in the course of these proceedings. This stands in contrast to a witness called to give independent expert evidence. Notwithstanding this distinction, to the extent that any evidence the liquidators have or may give in these proceedings relies upon or has been influenced by documents, materials or other communications provided to them or engaged in by the respondent, there remains a potential that any privilege in respect of the content of such documents, materials or communications may nonetheless have been impliedly waived. Those are matters that require careful assessment.
[5] More specifically Mr Lindholm is giving evidence in his capacity as liquidator of Australian Style Pty Ltd; Ms Erskine is giving evidence in her capacity as liquidator of ACN 109 510 198 Pty Ltd (previously know as Australian Style Investments Pty Ltd); Mr Morgan is giving evidence in his capacity as liquidator of Australian Style Services Pty Ltd.
In this context, the Tribunal has also had regard to the principles to be applied in respect of implied waiver of legal professional privilege as set out in ASIC v Southcorp Ltd (2003) 46 ACSR 438 (“Southcorp”) at [21], which were referred to in the written submissions of both the applicant and the respondent. The Tribunal accepts that the statement of principles regarding implied waiver as stated in Southcorp is an accurate reflection of the current state of the law, and the Tribunal has applied those principles accordingly. In particular, the Tribunal notes that implied waiver of privilege has to be determined by an assessment of the client’s conduct and informed by considerations of fairness.
The Tribunal has read each of the documents subject to the category A objections and considered those objections applying the principles as described above. The Tribunal’s conclusions are as follows:
Lindholm documents
(a)JLLF-1– Subject to litigation privilege, that is, confidential and brought into existence for the sole or dominant purpose of litigation. Privilege not waived.
(b)JLLF-2 – Subject to litigation privilege and not waived.
(c)JLLF-3 – Subject to litigation privilege. However, privilege in relation to the copy of the Ferrier Hodgson letter dated 25 May 2016 and the ATO letter dated 3 June 2016 and attachment included within JLLF-3 at pages 7 through to 13 is waived. A copy of the Ferrier Hodgson letter and ATO letter (absent annotation) is annexed to Mr Lindholm’s affidavit of 20 June 2016 and referenced in the affidavit. In the Tribunal’s view, given the prior disclosure and the reference to the content of the documents in Mr Lindholm’s affidavit, the privilege that would otherwise have attached to those documents has now been waived.
(d)JLLF-4 – Subject to litigation privilege and not waived.
(e)JLLF-5 – Subject to litigation privilege and not waived.
(f)JLLF-6 – Subject to litigation privilege and not waived.
(g)JLLF-7 – Subject to litigation privilege and not waived.
(h)JLLF-8 – Subject to litigation privilege and not waived.
(i)JLLF-9 – Subject to litigation privilege and not waived.
(j)ASIC-JL- 4 Subject to litigation privilege and not waived.
(k)ASIC-JL- 5 Subject to litigation privilege and not waived.
(l)ASIC-JL- 6 Subject to litigation privilege and not waived.
(m)ASIC-JL- 7 Subject to litigation privilege and not waived.
(n)ASIC-JL- 9 Subject to litigation privilege and not waived.
(o)ASIC-JL- 13 Subject to litigation privilege and not waived.
(p)ASIC-JL- 14 Subject to litigation privilege and not waived.
(q)ASIC-JL- 15 Subject to litigation privilege and not waived.
(r)ASIC-JL-16 Subject to litigation privilege. However, privilege in respect of the document is waived. ASIC-JL-16 includes an email from the respondent to Mr David Mazzone of Ferrier Hodgson proposing a draft letter to the ATO seeking clarification of certain matters. The final version of that letter was the Ferrier Hodgson 25 May 2016 letter that was ultimately annexed to Mr Lindholm’s affidavit of 20 June 2016. The response to the Ferrier Hodgson 25 May 2016 was the ATO letter dated 3 June 2016 which was also annexed to the 20 June 2016 affidavit of Mr Lindholm. In the Tribunal’s view, given the prior disclosure of the Ferrier Hodgson 25 May 2016 letter and the reliance placed on the draft of that letter forwarded to Ferrier Hodgson by the respondent, to maintain the respondent’s claim of privilege in respect of ASIC-JL-16 would be unfair to the applicant and accordingly the privilege has now been waived.
(s)ASIC-JL- 17 Subject to litigation privilege and not waived.
(t)ASIC-JL- 18 Subject to litigation privilege and not waived.
(u)ASIC-JL- 19 Subject to litigation privilege and not waived.
(v)ASIC-JL- 20 Subject to litigation privilege and not waived.
(w)ASIC-JL- 21 Subject to litigation privilege and not waived.
(x)ASIC-JL- 22 Subject to litigation privilege and not waived.
(y)ASIC-JL- 23 Subject to litigation privilege and not waived.
(z)ASIC-JL- 24 Subject to litigation privilege. However, ASIC-JL- 24 attaches the ATO letter dated 3 June 2016. Given its prior disclosure and the reference to it in Mr Lindholm’s affidavit dated 20 June 2016 the privilege has been waived.
(aa)ASIC-JL- 25 Subject to litigation privilege and not waived.
(bb)ASIC-JL- 26 Subject to litigation privilege and not waived.
(cc)ASIC-JL- 27 Subject to litigation privilege and not waived.
(dd)ASIC-JL- 28 Subject to litigation privilege and not waived.
(ee)ASIC-JL- 29 Subject to litigation privilege and not waived.
(ff)ASIC-JL- 30 Subject to litigation privilege and not waived.
(gg)ASIC-JL- 31 Subject to litigation privilege and not waived.
(hh)ASIC-JL- 35 Subject to litigation privilege and not waived.
(ii)ASIC-JL- 36 Subject to litigation privilege and not waived.
(jj)ASIC-JL- 37 Subject to litigation privilege and not waived.
(kk)ASIC-JL- 53 Subject to litigation privilege and not waived.
(ll)ASIC-JL- 54 Subject to litigation privilege and not waived.
(mm)ASIC-JL- 55 Subject to litigation privilege and not waived.
(nn)ASIC-JL- 56 Subject to litigation privilege and not waived.
(oo)ASIC-JL- 57 Subject to litigation privilege and not waived.
(pp)ASIC-JL- 58 Subject to litigation privilege and not waived.
(qq)ASIC-JL- 67 Subject to litigation privilege and not waived.
(rr)ASIC-JL- 68 Subject to litigation privilege and not waived.
(ss)ASIC-JL- 69 Subject to litigation privilege and not waived or not otherwise relevant.
(tt)ASIC-JL- 70 Subject to litigation privilege and not waived or otherwise not relevant.
Erskine documents
(a)RELF-1 to 21, RELF-25 to 26, RELF-28 to 42 Subject to litigation privilege and not waived.
(b)ASIC-RE-1 Subject to litigation privilege and not waived.
(c)ASIC-RE-2 Subject to litigation privilege and not waived.
(d)ASIC-RE-3 Subject to litigation privilege and not waived.
(e)ASIC-RE-4 Subject to litigation privilege and not waived except for the last two pages comprising Brooke Bird letter to ATO dated 4 May 2016, which has previously been disclosed and in respect of which privilege is waived.
(f)ASIC-RE-5 Subject to litigation privilege. However, the first page of ASIC-RE-5 contains a note from the respondent’s lawyer to Ms Erskine that makes comment on the content of the Brooke Bird letter to the ATO dated 4 May 2016. The content of that communication is relevant, in part, to the Brooke Bird letter to the respondent’s lawyer dated 6 May 2016, which was annexed to Ms Erskine’s affidavit dated 6 May 2016. In the circumstances, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of the first page of ASIC-RE-5. Privilege in respect of first page of ASIC-RE-5 is waived.
(g)ASIC-RE-6 Subject to litigation privilege. However, ASIC-RE-6 is a signed version of the Brooke Bird letter to the respondent’s lawyer dated 6 May 2016 and described as “draft” in the respondent’s schedule of objections. The final version of the Brooke Bird letter dated 6 May 2016 letter was annexed to and referenced in Ms Erskine’s affidavit of 6 May 2016. In the circumstances, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of ASIC-RE-6. Privilege is waived.
(h)ASIC-RE-7 Subject to litigation privilege. However, ASIC-RE-7 includes a signed version of the Brooke Bird letter to the respondent’s lawyer dated 6 May 2016 with the respondent lawyer’s hand-written annotation. The final version of the Brooke Bird letter dated 6 May 2016 was annexed to and referenced in Ms Erskine’s affidavit of 6 May 2016. In the circumstances, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of ASIC-RE-7. Privilege is waived.
(i)ASIC-RE-8 Subject to litigation privilege and not waived.
(j)ASIC-RE-9 Subject to litigation privilege. However, ASIC-RE-9 includes what appears to be the final version of the Brooke Bird letter to the respondent’s lawyer dated 6 May 2016. The final version of the Brooke Bird letter dated 6 May 2016 was annexed to and referenced in Ms Erskine’s affidavit of 6 May 2016. In the circumstances, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of ASIC-RE-9. Privilege is waived.
(k)ASIC-RE-10 Subject to litigation privilege and not waived.
(l)ASIC-RE-15 Subject to litigation privilege and not waived.
(m)ASIC-RE-32 Subject to litigation privilege and not waived.
(n)ASIC-RE-52 Subject to litigation privilege and not waived.
(o)ASIC-RE-53 Subject to litigation privilege and not waived.
(p)ASIC-RE-54 Subject to litigation privilege and not waived or otherwise not relevant.
(q)ASIC-RE-55 Subject to litigation privilege and not waived or otherwise not relevant.
(r)ASIC-RE-56 Subject to litigation privilege and not waived or otherwise not relevant.
(s)ASIC-RE-57 Subject to litigation privilege and not waived or otherwise not relevant.
(t)ASIC-RE-60 Subject to litigation privilege and not waived.
(u)ASIC-RE-67 Subject to litigation privilege and not waived.
Morgan documents
(a)ASIC-BM-12 Subject to litigation privilege and not waived.
(b)ASIC-BM-13 Subject to litigation privilege and not waived.
(c)ASIC-BM-14 Subject to litigation privilege and not waived.
(d)ASIC-BM-15 Subject to litigation privilege. However, ASIC-BM-15 comprises of a note from the respondent’s lawyer to Mr Morgan dated 17 June 2016, proposing changes to Mr Morgan’s affidavit. Mr Morgan ultimately swore his affidavit on 22 June 2016. In the circumstances, and because of the potential for the note to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of ASIC-BM-15. Privilege is waived.
(e)ASIC-BM-16 Subject to litigation privilege. However, ASIC-BM-16 is part of the email chain regarding the respondent’s lawyers’ note dated 17 June 2016. In the circumstances, and because of the potential for the note to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of ASIC-BM-16. Privilege is waived.
(f)ASIC-BM-17 Subject to litigation privilege. However, ASIC-BM-17 is also part of the email chain regarding the respondent’s lawyers note dated 17 June 2016 and attaches a draft affidavit. In the circumstances, and because of the potential for the note and proposed draft to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of ASIC-BM-17. Privilege is waived.
(g)ASIC-BM-18 Subject to litigation privilege. However, ASIC-BM-18 is also part of the email chain regarding the respondent’s lawyers’ note dated 17 June 2016 and attaches a draft affidavit. In the circumstances, and because of the potential for the note and proposed draft to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of ASIC-BM-18. Privilege is waived.
(h)ASIC-BM-19 Subject to litigation privilege. However, ASIC-BM-19 is also part of the email chain regarding the respondent’s lawyers’ note dated 17 June 2016 and proposes further changes to the draft affidavit. In the circumstances, and because of the potential for the note and proposed draft to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of ASIC-BM-19. Privilege is waived.
(i)ASIC-BM-20 Subject to litigation privilege. However, ASIC-BM-20 is also part of the email chain regarding the respondent’s lawyers’ note dated 17 June 2016. In the circumstances, and because of the potential for the note and proposed draft to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of ASIC-BM-20. Privilege is waived.
(j)ASIC-BM-21 Subject to litigation privilege. However, ASIC-BM-21 is also part of the email chain regarding the respondent’s lawyers’ note dated 17 June 2016 and attaches a marked-up version of the affidavit. In the circumstances, and because of the potential for the note and proposed draft to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of ASIC-BM-21. Privilege is waived.
(k)ASIC-BM-22 Subject to litigation privilege and substantially not waived. However, ASIC-BM-22 includes an email dated 17 June 2016 that sets out the respondent lawyer’s further questions regarding Mr Morgan’s affidavit. In the circumstances, and because of the potential for the email to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of that email within the email chain included in ASIC-BM-22. Privilege in respect of the email dated 17 June 2016 included in ASIC-BM-22 is waived.
(l)ASIC-BM-23 Subject to litigation privilege and substantially not waived. However, ASIC-BM-23 includes an email dated 17 June 2016 that sets out the respondent lawyer’s further questions regarding Mr Morgan’s affidavit. In the circumstances, and because of the potential for the email to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of that email within the email chain included in ASIC-BM-23. Privilege in respect of the email dated 17 June 2016 included in ASIC-BM-23 is waived.
(m)ASIC-BM-24 Subject to litigation privilege and substantially not waived. However, ASIC-BM-24 includes an email dated 17 June 2016 that sets out the respondent lawyer’s further questions regarding Mr Morgan’s affidavit. In the circumstances, and because of the potential for the email to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of that email within the email chain included in ASIC-BM-24. Privilege in respect of the email dated 17 June 2016 included in ASIC-BM-24 is waived.
(n)ASIC-BM-25 Subject to litigation privilege and substantially not waived. However, ASIC-BM-25 includes an email dated 17 June 2016 that sets out the respondent lawyer’s further questions regarding Mr Morgan’s affidavit. In the circumstances, and because of the potential for the email to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of that email within the email chain included in ASIC-BM-25. Privilege in respect of the email dated 17 June 2016 included in ASIC-BM-25 is waived.
(o)ASIC-BM-26 Subject to litigation privilege and substantially not waived or is otherwise not relevant. However, ASIC-BM-26 includes an email dated 17 June 2016 that sets out the respondent lawyer’s further questions regarding Mr Morgan’s affidavit. In the circumstances, and because of the potential for the email to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of that email within the email chain included in ASIC-BM-26. Privilege in respect of the email dated 17 June 2016 included in ASIC-BM-26 is waived.
(p)ASIC-BM-27 Subject to litigation privilege and substantially not waived or is otherwise not relevant. However, ASIC-BM-27 includes an email dated 17 June 2016 that sets out the respondent lawyer’s further questions regarding Mr Morgan’s affidavit. In the circumstances, and because of the potential for the email to be relevant to the final form of Mr Morgan’s affidavit, the Tribunal is of the view that it would be unfair to the applicant for the respondent’s claim of privilege to be maintained in respect of that email within the email chain included in ASIC-BM-27. Privilege in respect of the email dated 17 June 2016 included in ASIC-BM-27 is waived.
(q)ASIC-BM-30 Subject to litigation privilege and not waived.
(r)ASIC-BM-31 Subject to litigation privilege and not waived.
(s)ASIC-BM-32 Subject to litigation privilege and not waived.
(t)ASIC-BM-33 Subject to litigation privilege and not waived or otherwise not relevant.
(u)ASIC-BM-52 Subject to litigation privilege and not waived.
(v)ASIC-BM-53 Subject to litigation privilege and not waived.
(w)ASIC-BM-54 Subject to litigation privilege and not waived or otherwise not relevant.
(x)ASIC-BM-55 Subject to litigation privilege and not waived or otherwise not relevant.
(y)ASIC-BM-56 Subject to litigation privilege and not waived or otherwise not relevant.
(z)ASIC-BM-57 Subject to litigation privilege and not waived or otherwise not relevant.
(aa)ASIC-BM-58 Subject to litigation privilege and not waived or otherwise not relevant.
(bb)ASIC-BM-59 Subject to litigation privilege and not waived or otherwise not relevant.
(cc)ASIC-BM-60 Subject to litigation privilege and not waived or otherwise not relevant.
(dd)ASIC-BM-61 Subject to litigation privilege and not waived.
(ee)ASIC-BM-62 Subject to litigation privilege and not waived or otherwise not relevant.
(ff)ASIC-BM-63 Subject to litigation privilege and not waived or otherwise not relevant.
(gg)ASIC-BM-64 Subject to litigation privilege and not waived or otherwise not relevant.
(hh)ASIC-BM-65 Subject to litigation privilege and not waived or otherwise not relevant.
(ii)ASIC-BM-71 Subject to litigation privilege and not waived.
(jj)ASIC-BM-72 Subject to litigation privilege and not waived or otherwise not relevant.
(kk)ASIC-BM-73 Subject to litigation privilege and not waived or otherwise not relevant.
(ll)ASIC-BM-74 Subject to litigation privilege and not waived or otherwise not relevant.
(mm)ASIC-BM-79 Subject to litigation privilege and not waived.
(nn)ASIC-BM-72 Subject to litigation privilege and not waived or otherwise not relevant.
(oo)ASIC-BM-85 Subject to litigation privilege and not waived.
(pp)ASIC-BM-86 Subject to litigation privilege and not waived.
HarmAn implied undertaking claims

In addition to objections on the basis of legal professional privilege, the respondent has also objected to the applicant’s inspection of certain documents on the basis of the Harman implied undertaking. These were the category B documents. The respondent contends that certain documents in its possession relate to a separate Federal Court proceeding involving the applicant, which the applicant discontinued in 2018. Again, those documents are described in the respondent’s schedule of objections. The respondent contends that each of this category of documents should be known to the applicant because of his involvement in the proceeding. The respondent objects to the production of this category of documents on the basis that it does not wish to risk breaching the implied undertaking. It also contends that these documents should not be considered to have any ongoing relevance to the current proceedings.
The applicant contends that the respondent’s objection on this basis is misplaced. The applicant contends that the obligation to produce documents pursuant to a summons overrides any implied Harman undertaking. The applicant has cited comments of Pagone J in Oswal v Commissioner of Taxation (No 4) [2016] FCA 666, which in turn referenced comments of Gordon J in Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 398 at [13], as follows:
[6] …. However, the resolution of any tension between what would otherwise be competing and inconsistent obligations, is readily apparent; resolution lies in properly identifying the contents of the implied undertaking. In particular, it is necessary to recognise that the undertaking impliedly given in one proceeding not to use documents compulsorily produced in that proceeding except for the purposes of that proceeding is necessarily subject to other requirements of the law. So to take what may be a clearer example of the limits of the undertaking, the implied undertaking given in one proceeding would provide no answer to a subpoena for production of these documents in another proceeding. When a party is subpoenaed to produce documents obtained in another proceeding, it is no answer to say that “I am subject to an undertaking about how I may use these documents”. The parties undertaking in the first proceeding restricts the uses to which that party may choose to put the documents. But the undertaking is no answer to otherwise valid compulsive processes of law: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 32, 36-37, 46.
The Tribunal agrees. The Harman implied undertaking provides no proper basis for denying the applicant’s right to inspect documents that have been produced pursuant to a summons issued in these proceedings. It is relevant to note that some of the documents that are the subject of the respondent’s ongoing objection were not strictly produced pursuant to a formally issued summons, but rather, were produced in response to a direction of the Tribunal. However, in the Tribunal’s view, those documents should be treated in the same manner as if produced pursuant to a formally issued summons, as the only reason for not issuing a summons in respect of such documents was to ensure maximum efficiency in their production and for no other reason. Consistent with these conclusions, and notwithstanding the respondent’s reference to having some additional concerns regarding relevance with respect to this category of documents, given that the principal objection the respondent cited for the category is the potential for the respondent to be in breach of the Harman implied undertaking, the Tribunal is of the view that the most appropriate course with respect to documents in this category is for the applicant to have access to inspect the documents.
Relevance claims
The respondent also asserted that category C documents should not be made available for inspection on the basis that they are not relevant. At the interlocutory hearing, the respondent made clear that they did not seek to object to the production of documents on the basis that they were produced by the liquidators, but rather, that the objection is limited to those documents within its own possession. The applicant contends that to the extent that documents are genuinely not relevant to the present proceeding, they ought not to fall within the scope of any summons issued in the proceedings. In this context, it is worth again noting that some of the documents that have been produced were not formally the subject of a summons, but rather were produced in response to a direction of the Tribunal.
In any case, it was proposed by the applicant at the hearing that the issue of relevance be resolved by it being permitted to inspect an agreed sample of documents within the category. The applicant identified a list of six documents within the category C documents for this purpose. As a compromise, it was proposed that the Tribunal undertake an inspection of the six sample documents and to make a decision in respect of the category informed by its assessment. The Tribunal has proceeded on this basis.
Having considered each of the six sample documents, the Tribunal is satisfied that they are each not relevant to the issues in dispute between the parties in these proceedings. For these reasons, the Tribunal is satisfied that the category C documents should be treated as not being relevant to the issues in dispute and that no inspection should be granted to the applicant in respect of each document within that category.
DECISION
The Tribunal decides as follows:
(a)the respondent’s objection to the applicant’s inspection of produced category A documents, as set out in the respondent’s schedule of objections, be upheld save for the following: JLLF-3 at pages 7 through to 13; ASIC-JL-16; ASIC-JL- 24; last two pages of ASIC-RE-4; first page of ASIC-RE-5; ASIC-RE-6; ASIC-RE-7; ASIC-RE-9; ASIC-BM-15; ASIC-BM-16; ASIC-BM-17; ASIC-BM-18; ASIC-BM-19; ASIC-BM-20; ASIC-BM-21; email dated 17 June 2016 included in ASIC-BM-22; email dated 17 June 2016 included in ASIC-BM-23; email dated 17 June 2016 included in ASIC-BM-24; email dated 17 June 2016 included in ASIC-BM-25; email dated 17 June 2016 included in ASIC-BM-26; and email dated 17 June 2016 included in ASIC-BM-27;
(b)that the applicant be provided access to inspect the category B documents; and
(c)that the category C documents are not relevant to the issues in dispute and no inspection is granted to the applicant.

I certify that the preceding 28 (twenty eight) paragraphs are a true copy of the written reasons for the decision of The Hon. Matthew Groom, Senior Member

........................[sdg].......................................
Associate
Dated: 7 December 2022

Dates of hearing: 25 and 26 August 2022

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Lachlan Molesworth

Gadens Lawyers

Counsel for the Respondent:

Dr Philip Bender
Dr Adrian Hoel