Bolton and Australian Securities and Investments Commission
[2018] AATA 4640
•29 November 2018
Bolton and Australian Securities and Investments Commission [2018] AATA 4640 (29 November 2018)
Division:TAXATION AND COMMERCIAL DIVISION
File Number: 2015/6020
Re:Nicholas Francis John Bolton
APPLICANT
AndAustralian Securities and Investments Commission
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:29 November 2018
Place:Melbourne
The Tribunal decides:
(1)Documents 4, 5, 12 (except for a sentence beginning “Please” on the first page) 13 to 18, 20 to 34, 36 to 37, 39 to 40 and 42 to 47 need not be produced as they are:
(a)not subject to legal professional privilege;
(b)not subject to the obligation to lodge under s 37 of the AAT Act as they came into existence after the lodgement of the T documents; and
(c)not subject to the obligation to lodge under s 38AA of the AAT Act as they are not relevant to the review of the decision;
(2)Documents 3, 6, 9, 10, 11, Document 19 and Documents 41 and 48 need not be produced as they are:
(a)subject to legal professional privilege;
(b)not subject to the obligation to lodge under s 37 of the AAT Act as they came into existence after the lodgement of the T documents; and
(c)as they are subject to legal professional privilege, are not subject to the obligation to lodge under s 38AA of the AAT Act;
(3)Documents 8, 35 and 38, including the attachments to them, must be produced as they are:
(a)not subject to legal professional privilege as it has been waived;
(4)Documents 7 and 7A need not be produced as they are:
(a)subject to legal professional privilege; and
(5)Document 2 must be produced as it is:
(a)not subject to legal professional privilege as it has been waived; and
(6)Documents 49 to 52 must be produced as they:
(a)pre-dated the decision under review and are subject to production under s 37 of the AAT Act.
................[sgd]......................................................
Deputy President S A Forgie
Catchwords
PRACTICE AND PROCEDURE – communications between ASIC and liquidator – documents relied upon for opinion expressed in report under s 533 of Corporations Act 2001 – whether legal professional privilege applies to ongoing obligation under s 38AA of the Administrative Appeals Tribunal Act 1975 – whether liquidator of company an expert – whether documents subject to legal professional privilege – rulings made
Legislation
Acts Interpretation Act 1901
Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977
Corporations Act 2001
Evidence Act 1995
Tribunals Amalgamation Act 2015
Cases
Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31
Australian Prudential Regulation Authority v VBN [2005] FCA 1868; (2005) 88 ALD 403
Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242
Australian Securities and Investment Commission v Southcorp Limited [2003] FCA 804; (2003) 46 ACSR 438
AWB Ltd v Cole & Anor [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
Commissioner of Police (NSW) v Guo [2016] FCAFC 62; (2016) 332 ALR 236; 69 AAR 74
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
Commissioner of the Australian Federal Police v Propend Finance Pty Ltd [1996] HCA 3; (1997) 188 CLR 501; 141 ALR 545
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561; 77 ALJR 40
Dasreef Ptd Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; 277 ALR 611
Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468
Elliott & Ors v Ivey & Anor [1998] NSWSC 116
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577
Interchase Corporation Limited (in liq.) v Grosvenor Hill (Queensland) Pty Ltd (No. 1) (1999) 1 Qd R 141
Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572; 127 ALR 159; 37 ALD 321
Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58; (2011) 21 TAS Reports 189
Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41; 31 ALR 666; 4 ALD 139
New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543; 261 ALR 311
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288
Pace & Anor v Antlers Pty Ltd (In liquidation) (1988) 80 FCR 485
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128
Public Service Board of NSW v Osmond [1986] HCA 7; (1985) 159 CLR 656
R v Bartlett [1996] 2 VR 687
R v War Pensions Entitlement Appeal Tribunal & Anor; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228
Re Buttigieg and Comcare [2017] AATA 1002
Re Lemon Tree Passage & Districts RSL and Citizens Club Co-operative Ltd (1987) 11 ACLR 796
Re Tuimaseve and Minister for Immigration and Border Protection [2017] AATA 413
Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Tanning Research Laboratories Inc v O’Brien (1987) 11 ACLR 778
Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181; 278 ALR 1; 85 ALJR 746
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673
Secondary Materials
Expert Evidence, Law, Practice, Procedure and Advocacy, Freckelton and Selby, 3rd edition, 2005, Lawbook Co, Sydney
Explanatory Memorandum to the Tribunals Amalgamation Act 2015
REASONS FOR DECISION
Deputy President S A Forgie
On 6 October 2016, a delegate of the Australian Securities and Investments Commission (ASIC) disqualified Mr Nicholas Bolton from managing corporations for a period of three years. The delegate made that decision under s 206F of the Corporations Act 2001 (Corporations Act). During the hearing of the application on 6 March 2018, Mr Broadfoot QC, who appeared with Ms Hutchins of counsel for Mr Bolton, cross-examined the liquidator of ACN 108 855 652 Pty Ltd (ACN 108),[1] Mr Gary Fettes, regarding a report he prepared in accordance with s 533 of the Corporations Act. When Mr Fettes replied in cross-examination that all of the correspondence between him and ASIC had been relevant in preparing his report, Mr Broadfoot called for Mr Fettes to produce all of that correspondence between him and ASIC in relation to the external administration of ACN 108 (Fettes’ correspondence). ASIC has claimed that, with one exception being correspondence dated 22 April 2016 from ASIC to Mr Fettes, that correspondence is subject to legal professional privilege. On behalf of Mr Bolton, Ms Hutchins submitted that any legal professional privilege had been waived in light of Mr Fettes’ having considered them relevant in forming the opinion expressed in his report.
[1] Previously known as Australian Style IP Pty Ltd
Mr Bolton also called on ASIC to produce all of the correspondence between it and Mr Fettes, Mr Brent Morgan, Mr John Lindholm and Ms Robyn Erskine in relation to the companies relied upon in its Further Amended Statement of Facts and Contentions dated 24 August 2018. Mr Fettes, Mr Morgan, Mr Lindholm and Ms Erskine had been appointed as liquidators of various companies of which Mr Bolton had been a director. To date, ASIC has not produced these documents to the Tribunal and I have not considered them further at this stage.
Mr Fettes provided a list of documents to ASIC. In a letter dated 15 March 2018, ASIC prepared a list of the liquidators’ correspondence and added the Fettes’ correspondence. There were 196 documents in total over which ASIC claimed privilege over all of the Fettes correspondence other than one letter dated 22 April 2016 from Ms Birch to Mr Fettes. ASIC made only provisional claims over the liquidators’ correspondence.
Mr Bolton’s solicitors replied to ASIC on the same day; 15 March 2018. They asked for the production of the letter dated 22 April 2016 from Ms Birch to Mr Fettes and for ASIC to distinguish between the documents provided to it by Mr Fettes and those documents located by ASIC in its own files. The letter went on to state that all communications between Mr Fettes and Ms Birch before 4 May 2016 were unquestionably matters relevant to the opinion expressed by Mr Fettes in his supplementary report as well as in his affidavit. ASIC produced the letter dated 22 April 2016 in a letter dated 16 March 2018.
In its letter of 16 March 2018, ASIC advised Mr Bolton that Mr Fettes had provided it with a list of documents only and not with the documents themselves. It had identified the documents on Mr Fettes’ list as appearing from their description to have also been held on its own files. ASIC advised that it would inspect the documents held by Mr Fettes on his files and would then articulate any objections it had to their production. It also advised Mr Bolton’s solicitors that it did not claim legal professional privilege over Mr Fettes’ letter dated 2 May 2016 as it was already Exhibit GSF-2 of Mr Fettes’ affidavit dated 4 May 2016. On behalf of Mr Bolton, Ms Hutchins noted at the hearing that there appeared to be additional documents numbered 197 to 202 but I would note that there seemed to be fewer documents on the list overall.
On 21 March 2018, Mr Bolton’s solicitors wrote to ASIC asking for the list of documents in the Fettes’ correspondence over which it claimed legal professional privilege. They also asked for an indication of when the finalised list of the correspondence between ASIC and the remaining liquidators would be provided. Referring to ASIC’s letter dated 15 March 2018, Mr Bolton’s solicitors asked for details of the claims made for privilege. They asked for:
“(a) Details of ASIC’s claims for privilege in relation to documents produced by Mr. Fettes to the Tribunal (which, per ASIC’s 16 March 2018 Letter, have not been reviewed);
(b)Details of ASIC’s claims for privilege in relation to documents numbered 2-16 (inclusive) of ASIC’s 15 March Letter; and
(c)Details of ASIC’s claims for privilege in relation to the remaining documents listed in ASIC’s 15 March 2018 Letter.”[2]
[2] Letter dated 21 March 2018 from Baker McKenzie to ASIC
In particular, Mr Bolton’s solicitors asked ASIC to itemise the following in respect of each document over which it asserts a claim for privilege:
“(a) a full description of the document including the names all authors and recipients of the document (including their titles and names of the entities they are from), and a general description of the nature of the document;
(b)the date of the document;
(c)the type of document and whether the document is in electronic or hard copy;
(d)the category of legal professional privilege claimed (advice privilege or litigation privilege) and the basis on which the privilege is asserted; and
(e)whether legal professional privilege is claimed over the whole or part of the document.”[3]
[3] Letter dated 21 March 2018 from Baker McKenzie to ASIC
I have decided that some documents in the Fettes’ correspondence were subject to the obligation imposed on a decision-maker by s 37. Others did not fall within the ambit of the s 37 documents and were not subject to legal professional privilege but do not have to be produced as they are not relevant to the decision under review. Yet other documents are subject to legal professional privilege and are therefore not to be produced while the remaining documents are not and should be produced. These have been identified in the formal decision below.
MR FETTES’ REPORT
Mr Fettes was appointed liquidator of ACN 108 on 19 April 2013 when the Federal Court ordered that it be wound up. On 18 October 2013, Mr Fettes reported to ASIC under s 533 of the Corporations Act.[4] Section 533(1) provides:
[4] T documents; T3.12
“If it appears to the liquidator of a company, in the course of a winding up of the company, that:
(a)a past or present officer or employee, or a member or contributory, of the company may have been guilty of an offence under a law of the Commonwealth or a State or Territory in relation to the company; or
(b)a person who has taken part in the formation, promotion, administration, management or winding up of the company:
(i)may have misapplied or retained, or may have become liable or accountable for, any money or property of the company; or
(ii)may have been guilty of any negligence, default, breach of duty or breach of trust in relation to the company; or
(c)the company may be unable to pay its unsecured creditors more than 50 cents in the dollar, the liquidator must;
(d)as soon as practicable, and in any event within 6 months, after it so appears to him or her, lodge a report with respect to the matter and state in the report whether he or she proposes to make an application for an examination or order under section 597; and
(e)give ASIC such information, and give it such access to and facilities for inspecting and taking copies of any documents, as ASIC requires.”
If the liquidator thinks fit, he or she may lodge further reports specifying any other matter that, in his or her opinion, it is desirable to bring to the notice of ASIC.[5]
[5] Corporations Act; s 533(2)
Under s 533(3), the Court may direct the liquidator to lodge a report if it appears to that Court:
“(a) that a past or present officer or employee, or a contributory or member, of the company has been guilty of an offence under a law referred to in paragraph (1)(a) in relation to the company; or
(b)that a person who has taken part in the formation, promotion, administration, management or winding up of the company has engaged in conduct referred to in paragraph (1)(b) in relation to the company;
and that the liquidator has not lodged with ASIC a report with respect to the matter, the Court may, on the application of a person interested in the winding up, direct the liquidator so to lodge such a report.”
Where a liquidator has lodged a report under s 533, ASIC may decide that the matter is not one in respect of which a prosecution ought to be begun. If it makes that decision, ASIC must inform the liquidator of it. The liquidator may then begin a prosecution for any offence referred to in the report.[6] ASIC may direct that the whole, or a specified part, of the costs and expenses properly incurred by a liquidator in proceedings under s 534 must be paid out of ASIC’s money. In the course of carrying out his or her duties, a liquidator has a qualified privilege in respect of a statement that he or she makes, whether orally or in writing.[7] It is apparent from the meaning given to the expression “qualified privilege”[8] that it is limited to proceedings for defamation.[9]
[6] Corporations Act; s 534(1)
[7] Corporations Act; s 535
[8] Corporations Act; ss 9 and 89
[9] Section 89 provides: “(1) Where this Act provides that a person has qualified privilege in respect of an act, matter or thing, the person:
(a)has qualified privilege in proceedings for defamation; or
(b)is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;
as the case requires, in respect of that act, matter or thing.
(2) In subsection (1):
malice includes ill will to the person concerned or any other improper motive.
(3) Neither this section nor a provision of this Act that provides as mentioned in subsection (1) limits or affects any right, privilege or immunity that a person has, apart from this section or such a provision, as a defendant in proceedings, or an action, for defamation.”
A report made under s 533 has a set format in which a liquidator answers a series of questions.[10] In answering them, Mr Fettes said that he had inspected the company’s books and records and, in his opinion, they were not adequate. He considered the causes of ACN 108’s failure to be poor financial control including lack of records, inadequate cash flow or high cash use and trading losses. Mr Fettes noted that he was reporting misconduct. It appeared to him 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 (care and diligence; directors’ and officers’ duties), 286/344(1) (obligation to keep financial records) and 588G(1) and (2) (insolvent trading). Mr Fettes stated that he would not be referring the matter to any authority other than ASIC and he did not recommend that the matter warranted inquiry by ASIC.
[10] Form Ex01
On or about 3 May 2016, Mr Fettes provided further information to ASIC in relation to the external administration of ACN 108. He did so in a letter dated 2 May 2016,[11] which he wrote in response to ASIC’s letter dated 22 April 2016.[12] That letter, over which ASIC has not claimed legal professional privilege, begins with a reference to proceedings in the Tribunal and the stage they had reached. From ASIC’s point of view, the documents lodged by Mr Bolton did not support the statements that he had made. Therefore, ASIC advised Mr Fettes, it was seeking his further assistance to address the matters before the Tribunal. It expected to lodge a witness statement that he had made but it would first prepare that statement for his review. ASIC also asked that Mr Fettes attend part of the hearing in the Tribunal to confirm his witness statement. The letter raised particular issues regarding two matters raised in Mr Fettes’ s 533 report. It also asked Mr Fettes if he was able to provide a copy of an audit report prepared by the Australian Taxation Office (ATO) and an objection decision made by the Commissioner of Taxation (Commissioner) and comment on those matters.
[11] Exhibit 1; GSF-2
[12] Exhibit 1; GSF-2
OUTLINE OF SUBMISSIONS
On behalf of Mr Bolton, Mr Broadfoot submitted that ASIC was still in ongoing breach of its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) as well as in breach of its ongoing obligations under s 38AA. Section 38AA is intended to impose an ongoing obligation on the decision-maker to disclose documents that are relevant in the same manner as s 37 is intended to impose an obligation on the decision-maker when responding to the notice given by the Tribunal under s 29 of the AAT Act. That proposition is clear from the text of s 38AA and from the Explanatory Memorandum accompanying the Tribunals Amalgamation Act 2015 (TAA), which added that section. That Explanatory Memorandum, Mr Broadfoot submitted, makes it clear that s 38AA is to be read side by side with s 37 and extends the obligation under s 37 to material subsequently obtained by the decision-maker but with the same limitations and obligations. That is to say, legal professional privilege could not be relied upon under either s 37 or under s 38AA to avoid the obligation to produce those documents. Section 38AA does not need to include a provision mirroring s 37(3) for it simply extends the obligation already imposed by s 37.
With regard to the particular claims for legal professional privilege made over correspondence between ASIC and Mr Fettes, Mr Broadfoot referred to the judgment of Lindgren J in Australian Securities and Investment Commission v Southcorp Limited[13] (Southcorp). Ordinarily, disclosure of an expert’s report in litigation will result in an implied waiver of privilege in respect of the brief or instructions or documents if the appropriate inference to be drawn is that they could be said to influence the content of the report. The same is true of documents used by an expert to form an opinion or write a report. Had Mr Fettes prepared documents for the purpose of obtaining his own legal advice, they may be privileged.
[13] [2003] FCA 804; (2003) 46 ACSR 438 at [21]; 441-442
On behalf of ASIC, Dr Bender with Mr Hoel of counsel submitted that, ordinarily, the confidential briefing or instructing by a prospective litigant’s lawyers of an expert to provide a report of his or her opinion to be used in anticipated litigation attracts legal professional privilege. Whether or not the original copies of documents do so, copies made for the purpose of forming part of confidential communications made between the client’s lawyers and the expert witness ordinarily attract privilege. All of the documents other than the last four on the list[14] are privileged on this basis. Dr Bender relied on the reasons I gave in Re Buttigieg and Comcare[15] as authority for the proposition that legal professional privilege may be claimed in respect of documents coming within the compass of s 38AA. He submitted that there is a difference between s 37, whose obligations continue regardless of any rule of law relating to privilege or the public interest in relation to the production of documents,[16] and s 38AA. That difference lies in the fact that s 37 is concerned with the documents that are lodged at the very start of a matter and usually before the parties have taken any positive steps in relation to the preparation of their cases. Once that preparation has started, it is easy to see the absurdities that might arise if s 38AA required a decision-maker to give to the other party every written communication between the decision-maker’s agency and its counsel and solicitors.
[14] Letter dated 6 February 2014 from ASIC to Mr Fettes, Liquidator of ACN 108 responding to his notification that he did not intend to lodge a supplementary report it had requested under s 533 of the Corporations Act; Letter dated 27 November 2013 from ASIC to Mr Fettes, responding to his notification that he did not intend to lodge a supplementary report it had requested under s 533 of the Corporations Act; Letter dated 21 October 2013 from ASIC to Mr Fettes requesting a supplementary report under s 533 of the Corporations Act; and Letter dated 23 January 2014 from Mr Fettes to ASIC attaching Profit and Loss Statements and Balance Sheets for ACN 108.
[15] [2017] AATA 1002
[16] AAT Act; s 37(3)
Legal professional privilege arises, Dr Bender submitted, in respect of communications brought into existence for the purposes of providing legal advice or for use in legal proceedings. That can include communications and documents passing between a solicitor and a third party in relation to the litigation. If something is inconsistent with maintaining that privilege, it is said that the privilege has been waived. What is inconsistent with the privilege is informed by considerations of fairness. In the context of expert reports, the relevant inconsistency arises where the person asserting privilege uses the material that would otherwise be privileged to influence the content of the report or the proof of evidence and the material is not produced. Dr Bender referred to the fourth principle set out in that case of Southcorp i.e. that disclosure of an expert’s report for the purpose of relying on it in litigation will result in an implied waiver of the privilege in respect of the brief for instructions of documents briefing or instructing the expert and documents made for the purpose of confidential communications between the expert and the lawyers. If the appropriate inference were that those documents could be said to influence the content of the report, it would be unfair to allow a party to rely on that report without disclosing those documents. Dr Bender referred also to the application of those principles in Kentish Council v Bellenjuc Pty Ltd.[17]
[17] [2011] TASSC 58; (2011) 21 TAS Reports 189; Porter J
Dr Bender submitted that the Tribunal’s expert evidence guidelines should not apply to the reports of liquidators. Liquidators are experts in their fields of accounting and insolvency. They may be called on as expert liquidators regarding a particular set of facts occurring in a particular context with which they have had no association. When, however, they are called on as liquidators to report on external administrations they are undertaking or have undertaken, they are in a different position. They are giving evidence about a particular external administration and not as an independent expert as they would be had they not been involved in that external administration.
CONSIDERATION
Section 38AA of the AAT Act
In order to put s 38AA into its context, it is necessary to start with s 29AC of the AAT Act. Only s 29AC(1) is relevant in this case:
“If an application is made to the Tribunal for a review of a decision, the Registrar must give the following persons written notice of receipt of the application:
(a) the applicant;
(b) the person who made the decision;
(c)any other person who is made a party to the review by the enactment that authorised the application.”
The applicant and the person who made the decision are among those described as “parties” to a proceeding.[18] When an application is made to the Tribunal for review of a decision, the Registrar must give written notice of the receipt of the application to each of them as well as to any other person who is made a party to the review. Within 28 days of receiving that notice or within such further period as the Tribunal allows, the person who has made the decision that is the subject of an application for review must, unless the application relates to a proceeding in the Security Division to which s 39A applies,[19] lodge a copy of:
“(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b)subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.”[20]
[18] AAT Act; s 30(1)(a) and (b)
[19] AAT Act; s 37(1AAA)
[20] AAT Act; s 37(1). Section 37(1AAB) applies the obligation in s 37(1)(b) to matters involving second tier review from decisions of the Tribunal’s Social Security and Child Support Division.
There are various qualifications and additions to the obligation. Among them is the power given to the Tribunal under s 37(1AA) to direct a person to lodge a specified number of additional copies of the statement or documents within the specified period. Another is the obligation imposed on the decision-maker by s 37(1AE) to give a copy of the statement and documents to each other party to the proceeding unless directed otherwise by the Tribunal. Sections 37(1AF) and 37(1AG) provide for situations in which a decision-maker applies for a confidentiality order under s 35(3) or (4) of the AAT Act. They provide:
“(1AF) If:
(a)a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph (1)(b) or subsection (1AAB) to lodge a copy of a document with the Tribunal in respect of the application; and
(b) within the period applicable under subsection (1) the person:
(i)applies to the Tribunal for a direction under subsection 35(3) or (4) in relation to the document and lodges with the tribunal, together with the application for the direction, a copy of the document; and
(ii)gives a copy of the application for the direction to each party to the application for review;
the person is not required to comply with paragraph (1)(b) or subsection (1AAB) in relation to the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so.
(1AG)Subsection (1AF) does not affect the obligation of a person referred to in that subsection to comply with paragraph (1)(b) or subsection (1AAB) in relation to a document to which that subsection does not apply.”
Section 37(3) is also relevant when it provides:
“This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.”[21]
[21] I note that “… [T]he reach of the subsection [s 37(1)(b)] does not extend to expressions of legal opinion or advice which may have been available to the decision-maker but were not considered in the course of arriving at the impugned decision. To hold otherwise would be to oblige the decision-maker to search out and lodge with the tribunal and supply to the other parties copies of every document containing a pertinent expression of legal opinion in the decision-maker’s possession or power, even if the existence of the document had not been present to the mind of the decision-maker when making the decision under review. The obligation would extend to legal texts or journals which had been available to the decision-maker but not consulted by him or her.”: Australian Prudential Regulation Authority v VBN [2005] FCA 1868; (2005) 88 ALD 403 at [32]; 412 per Ryan J.
Sections 38 and 38AA relate to the Tribunal’s power to obtain further statements and documents and to the decision-maker’s obligation to lodge further material. Beginning with s 38, it provides that:
“(1) The Tribunal may order a person who has lodged a statement with the Tribunal in accordance with paragraph 37(1)(a) to lodge an additional statement with the Tribunal, within the time specified in the order, containing further and better particulars in relation to any one or more of the following:
(a)particulars of findings on material questions of fact;
(b)reference to the evidence or other material on which those findings were based;
(c)particulars of the reasons for the decision.
(2)Subsection (1) does not apply to a proceeding in the Security Division to which section 39A applies.”
Section 38AA imposes an ongoing obligation on the decision-maker in relation to the lodgement of documents:
“(1) If:
(a)subsection 37(1) or (1AAB) applies to a person in relation to an application for review of a decision; and
(b)at any time after the end of the applicable period under the subsection and before the Tribunal determines the review:
(i)the person obtains possession of a document; and
(ii)the document is relevant to the review; and
(iii)a copy of the document has not been lodged with the Tribunal in accordance with the subsection;
the person must, subject to any directions given under section 18B, lodge a copy of the document with the Tribunal as soon as practicable after obtaining possession.
(2)Subsections 37(1AA), (1AE), (1AF) and (1AG) apply in relation to the requirement in subsection (1) of this section as if:
(a)that requirement were the requirement referred to in those subsections; and
(b)the references in subsections 37(1AE) and (1AF) to lodging or giving within a period were references to lodging or giving as soon as practicable.”
Although s 38 is not in issue in this case, it is relevant in that it reflects on the evidentiary material in respect of which a decision-maker may be required to lodge a further statement that is in addition to that lodged under s 37(1)(a).[22] It reflects on it in so far as it gives the Tribunal power to order the decision-maker to lodge an additional statement containing further and better particulars regarding one or more of the three essential elements required of reasons for decision i.e. findings on material questions of fact; reference to evidence or other material on which those findings were based; and particulars of the reasons for decision. Those are the three essential elements referred to in the obligation imposed on a decision-maker by s 37(1)(a) and also in the obligation imposed on the Tribunal by ss 43(2) and (2B) when making its decision on review.
[22] The obligation imposed by s 38(1) is imposed on “… a person who has lodged a statement with the Tribunal in accordance with paragraph 37(1)(a) …” (emphasis added). It is not imposed on a person “… who is required to lodge a copy of a statement under paragraph (1)(a) …” (emphasis added) but who has been directed under s 37(1AB) “… to lodge instead a copy of a document setting out the reasons for the relevant decision …”. The only way in which such a person would be required to comply with a direction under s 38(1) would be if the Tribunal had first given him or her a direction under s 37(1AC) to lodge a statement in accordance with s 37(1)(a) and he or she had done so.
The effect of s 38 is that the decision-maker will refer to the evidence or other material on which the findings on material questions of fact were based in making the decision, which becomes the subject of the later application for review. Reference will not be made to evidence or other material that came into the decision-maker’s possession at a later time. Rather, reference will be made to the evidence or other material on which the decision was made. That evidence or other material will have been included among the “documents”[23] either in the decision-maker’s possession or under his or her control and relevant to the review of the decision by the Tribunal that the decision-maker was required to produce under s 37(1)(b). It follows that the decision-maker will be required to include reference to any evidence or other evidentiary material regardless of any rule of law relating to privilege or the public interest in relation to the production of documents because the documents produced under s 37(1)(b) will have included them by virtue of s 37(3).
[23] The word “document” is given a broad definition by the Acts Interpretation Act 1901 (AI Act) and there is nothing in the AAT Act that suggests that it should be read down. Section 2B of the AI Act provides that: “document means any record of information, and includes: (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and (d) a map, plan, drawing or photograph.”
Other than providing, as does s 37(1AAA) in relation to the obligations under s 37, that the obligation under s 38(1) to provide an additional statement does not apply to a proceeding in the Security Division,[24] s 38 makes no provision for the application of any obligations under s 37 to apply to the additional statement provided under s 38. For example, the obligation imposed by s 37(1AA) to comply with any direction the Tribunal may make regarding the number of copies of the statement that must be lodged is not specified. That would be a matter for the Tribunal to order as would any direction to give the additional statement to each other party to the proceeding. Under s 37, the obligation to give a statement to each other party to the proceeding unless the Tribunal otherwise directs is the subject of s 37(1AE).[25]
[24] AAT Act; s 38(2)
[25] The obligations in ss 37(1AF) and (1AG) apply only to documents lodged under s 37(1)(b) and not to the statement that must be lodged under s 37(1)(a).
Like s 38, s 38AA builds on the obligation imposed by s 37(1). It applies if ss 37(1) or (1AAB) applies to a person in relation to an application for review of a decision.[26] Unlike s 38, s 38AA applies four specific obligations imposed by s 37 in relation to documents (and a statement) that must be lodged under s 37 to the ongoing documents that must be lodged under s 38AA(1). Those obligations are set out in ss 37(1AA), (1AE), (1AF) and (1AG).
[26] AAT Act; s 38AA(1)(a). Those who are directed under s 37(1AB) to lodge a copy of a document setting out the reasons for the relevant decision instead of a statement under s 37(1)(a) would be subject to the obligations imposed by s 38AA. That follows from the fact that s 37(1) applies to such a person even though s 37(1AB) provides for a different way in which the obligation under s 37(1)(a) may be met.
No mention is made of s 37(3) in either ss 38 or 38AA. If it were the case that all of the obligations imposed by s 37 on a decision-maker were also imposed in relation to the ongoing documents that he or she must lodge under s 38AA, it is open to question why Parliament expressly applied the obligations imposed by ss 37(1AA), (1AE), (1AF) and (1AG). In so far as ss 37(1AE) and (1AF) are concerned, the answer would lie in the need to change the references in each of them to specified time periods to an obligation to lodge or give documents “as soon as practicable”.
That answer does not explain why express reference is made in s 38AA(2) to s 37(1AA). Section 37(1AA) gives the Tribunal power to direct a person who is required to lodge a copy of a statement or document under ss 37(1) or (1AAB) to lodge a specified number of additional copies within the “specified period”. The “specified period” must be a reference to the period of 28 days after the decision-maker received notice of the application or such further period as the Tribunal allows as provided for in s 37(1) or in s 37(1AAB). If Parliament had intended that all of the obligations imposed on a decision-maker by s 37 regarding the lodgement of documents were imposed equally on the decision-maker by s 38, there would be no need to make specific reference to s 37(1AA) for it would apply by virtue of its terms and without modification.
That brings me to s 37(3). Specific reference was not made to it in either s 38 or s 38AA, both of which were inserted in the AAT Act in their current form by the TAA. There was no need to refer to it in s 38 as it related only to the content of the statement and the reasons for the decision of which review is sought. As I have explained, s 37(3) would apply to the evidence or other material to which reference may be made in the additional statement. The documents, which are subject to the ongoing obligation dealt with in s 38AA, are not relevant to that decision although they will be relevant to the review. It follows that it is of no relevance that s 38 does not refer to s 37(3).
If it were not for two matters, which are linked in any event, I might be persuaded that s 38AA is intended to be read as incorporating all of the obligations under s 37 despite the lack of any express reference to s 37(3) or to the substance of that subsection. The first matter is the express reference in s 38AA(2) to s 37(1AA) when there is no need for such an express reference if all of the obligations imposed by s 37 are intended to apply to the lodgement of documents under s 38AA. I have expanded on that at [30] above.
The second matter is the very omission of any reference to s 37(3) in s 38AA or to any reference in s 38AA to its provisions having effect notwithstanding any rule of law relating to privilege or the public interest. The omission immediately draws to mind the principle that both legal professional privilege and public interest immunity are rules of the general law and not mere rules of evidence.[27] Consistent with that, the principles of statutory construction require very clear words to exclude those rules of the general law.[28] The omission of any exclusionary provision equivalent to s 37(3) in s 38AA suggests that Parliament did not intend s 38AA to apply notwithstanding any rule of law relating to privilege or the public interest. That approach would be consistent with its having referred only to specific provisions of s 37 that also took effect in relation to the ongoing requirement to lodge documents with the Tribunal i.e. ss 37(1AA), (1AE), (1AF) and (1AG).
[27] See, for example, Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561; 77 ALJR 40 at [9]; 552; 564; 42-43 per Gleeson CJ, Gaudron, Gummow and Hayne JJ in relation to legal professional privilege and Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572; 127 ALR 159; 137 ALD 321 at [16]; 589; 165; 326 in relation to public interest immunity.
[28] Commissioner of Police (NSW) v Guo [2016] FCAFC 62; (2016) 332 ALR 236; 69 AAR 74 at [15]; 242; 81 per Collier J and [62]; 91 per Robertson and Griffiths JJ
That approach would also be consistent with the approach taken by Parliament elsewhere in the AAT Act. Parliament has been careful to exclude the operation of any rules of law relating to public interest in relation to documents in respect of which the Attorney-General or a State Attorney-General has certified that disclosure of information concerning a specified matter or disclosure of matter in a document would be contrary to the public interest. Those certifications are made under ss 36 and 36B respectively. Section 36D(6) provides that:
“Sections 36 and 36B exclude the operation of any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal.”[29]
The Full Court of the Federal Court has read s 36D(6) strictly so that it applies only to ss 36 and 36B in relation to the disclosure of information or matter contained in documents. It has not understood s 36D(6) to apply more generally to exclude any rules of law relating to public interest when a person is being questioned.[30]
[29] Section 39B(8) makes a similar provision in relation to certain documents that relate to a proceeding in the Tribunal’s Security Division and are the subject of a certificate by the ASIO Minister.
[30] Commissioner of Police (NSW) v Guo [2016] FCAFC 62; (2016) 332 ALR 236; 69 AAR 74 at 74 at [64]-[72]; 252; 91-94 per Robertson and Griffiths JJ
A strict interpretation of s 38AA is not only consistent with the rules of statutory construction in relation to rules of law but with the way in which merits review operates in the Tribunal. Section 37 is directed to ensuring that a decision-maker puts all of his or her cards on the table by disclosing all documents in his or her possession or control and relevant to the review of the decision. Had the privilege and immunity not been abrogated by s 37(3), the general law would have applied and the decision-maker would not have been obliged to produce documents over which privilege or immunity could be claimed. As it is, the decision-maker would be obliged to disclose legal advice obtained before making the decision.
To make that same requirement after an application for review of the decision has been lodged would be to require a decision-maker to reveal any legal advice obtained at a time after the decision was made. To read into s 38AA a provision that would remove a decision-maker’s right to claim that such advice was exempt from disclosure by reason of legal professional privilege would be to deny that decision-maker the rights of any other party to the proceeding to seek legal advice without having to disclose it. The Tribunal’s procedures in many of its Divisions, including the Taxation and Commercial Division, follow what may be regarded as a traditional adversarial form but in a context in which the Tribunal is required to afford each party to a proceeding a reasonable opportunity to present his or her case.[31] The Tribunal’s obligation extends to giving each party a reasonable opportunity to inspect any documents to which it intends to have regard but legal advice obtained by one party or the other is not evidence or other material on which it will make findings on material questions of fact. The legal advice that the parties obtain may frame the way in which they present their cases and make their submissions but it cannot influence the findings the Tribunal makes.
[31] AAT Act; s 39(1)
Finally, s 18B does not alter my view. Section 38AA(1) requires a person to lodge a document that comes within the terms of s 38AA(1)(b) as soon as practicable after obtaining possession of it but that requirement is subject to any directions given under s 18B. Section 18B(4) provides that:
“… directions may deal with matters relating to the provision of documents under sections 37 and 38AA, including any or all of the following matters:
(a)documents that are or are not required to be lodged under paragraph 37(1)(b) and subsections 38AA(1);
(b)documents that are or are not required to be lodged under subsection 37(1AAB) for the purposes of second reviews;
(c)lodgement of documents for the purposes of subsection 37(1AB);
(d)lodgement of additional copies of documents;
(e)documents that are to be given to other parties under subsection 37(1AE).”
It may be argued that the power to give directions under ss 18B(4)(a) and (b) does impinge on the scope of the documents that must be lodged under ss 37, 38AA or 37(1AAB).[32] It is not necessary to consider whether that is so in this case but I would make two observations. One is that there is nothing in s 18B that sets aside the general law relating to the application of legal professional privilege or public interest immunity. The second is that s 18B(4) gives an example of the directions that might be given under s 18B(1) in relation to all or any of the following:
[32] The power given under ss 18B(4)(c), (d) and (e) does not, for it is directed solely to the machinery of lodgement, provision of copies or provision of copies to other parties to the proceeding.
“(a) the operations of the Tribunal;
(b)the procedure of the Tribunal;
(c)the conduct of reviews by the Tribunal;
(d)the arrangement of business of the Tribunal;
(e)the places at which the Tribunal may sit.”
None of these matters relates to substantive matters of law. To read the powers under ss 18B(4)(a) and (b) as permitting the President to make directions that would require the lodgement of documents notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents would be to give him power beyond the source of his power in s 18B(1).
For these reasons, I do not consider that ASIC is obliged under s 38AA to lodge and give to Mr Bolton any documents that have come into its possession since it lodged its documents under s 37 and that are subject to legal professional privilege.[33]
[33] I note that I came to the same conclusion in Re Buttigieg and Comcare [2017] AATA 1002. I do not resile from my analysis in that case but have considered the issue afresh and without reference to that analysis. I reached a similar conclusion with Senior Member Nikolic and Member Burke in Re Tuimaseve and Minister for Immigration and Border Protection [2017] AATA 413. An appeal against the decision was allowed but not on this point: Tuimaseve v Minister for Immigration and Border Protection [2018] FCA 396.
Legal professional privilege
Legal professional privilege is a rule of substantive law:
“… which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. …”[34]
[34] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561 at [9]; 552; 564 per Gleeson CJ, Gaudron, Gummow and Hayne JJ
The person claiming legal professional privilege must establish the facts that give rise to the privilege. That may be done by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence.[35] The form in which the communications are made is irrelevant. As McHugh J said in Commissioner of the Australian Federal Police v Propend Finance Pty Ltd:[36]
“… The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client’s affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.”[37]
[35] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; 11 ALR 577 at [28]; 689; 589 per Stephen, Mason and Murphy JJ
[36] [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545; Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
[37] [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545; at 553; 584
The “sole purpose” test to which McHugh J referred has now been overtaken by the “dominant purpose” test[38] but McHugh J’s expression otherwise remains relevant. Provided the material meets the description of documents and communications that come within the privilege, it is of no consequence that they were gathered or the communications made for the purpose of obtaining legal advice about an administrative decision or for legal proceedings in a court or for merits review proceedings in an administrative tribunal. The reason for this was explained by Mason and Wilson JJ in Waterford v The Commonwealth.[39]
[38] See Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123 at [61]; 73; 139 per Gleeson CJ, Gaudron and Gummow JJ
[39] [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673 at [6]-[7]; 64; 679
Legal professional privilege protects communications made by both parties to those communications. Therefore, as well as protecting communications made to the client by the legal adviser, it will also protect communications made by the client for the dominant purpose of seeking legal advice:
“… [L]egal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client’s legal adviser to enable him or her to advise … The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer …”[40]
[40] AWB Ltd v Cole & Anor [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at [44(9)]; 46; 663-664 citations omitted
When Hodgson J decided Standard Chartered Bank of Australia Ltd v Antico,[41] the relevant test was one of sole purpose and not of dominant purpose as it now is. Despite this, his further comment regarding the compass of legal professional privilege remains relevant:
“… It seems to me that the sole purpose is to be applied to the original communication, and then the privilege will normally extend to notes or memoranda of that advice without the necessity of again applying the sole purpose test: however, the purpose of the notes, memoranda or minutes will be relevant in deciding whether they can fairly be described as being records of the legal advice rather than of something else.”[42]
[41] (1993) 36 NSWLR 87
[42] (1993) 36 NSWLR 87 at 91
The fact that legal professional privilege attaches to communications rather than to documents means that the privilege may attach to documents which were not written for the dominant purpose of obtaining legal advice but which were copied for that purpose:
“… [P]rima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended. But the prima facie rule is subject to a qualification next to be mentioned.
… Thus, in proceedings in which discovery is available, the contents of an unprivileged original document can be proved as against a party who has had the original in his possession or power, even if a copy of the original is protected from inspection by legal professional privilege. When an unprivileged original can be produced or secondary evidence of its contents can be tendered in evidence, the according of legal professional privilege to a copy does not impair, although it does not hasten …, the administration of justice.
…
… I would state the qualification in this way: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. The loss of privilege can be avoided by the production of a copy of the original (which might be produced by copying the privileged copy) the accuracy of which is verified by a person having knowledge of the contents of the original. So long as a copy of the unprivileged original (with verification if necessary) or other secondary evidence of its contents is available to be tendered to prove the contents of the original, the privilege attaching to any copy of the original can and should be maintained. Otherwise, I would hold the privilege of the privileged copy to be lost.”[43][43] Commissioner of the Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545; 71 ALJR 327 at 509-510; 549-551; 331-333 per Brennan CJ; citations omitted
Notes, memoranda or documents need not necessarily be made by officers or employees of the client in order to come within the protection of legal professional privilege. In Pratt Holdings Pty Ltd v Commissioner of Taxation[44] (Pratt), Pratt Holdings Pty Ltd (Pratt Holdings) had obtained a report from its accountant valuing its losses. It did so after receiving advice from its legal advisers in relation to a balance sheet reconstruction and sent the accountant’s report to them. When the Commissioner of Taxation wanted a copy of the report, Pratt Holdings resisted his request arguing that it had been obtained for the dominant purpose of obtaining legal advice and was protected by legal professional privilege.
[44] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128; Finn, Merkel and Stone JJ
The parties accepted that, when Pratt Holdings sent the report to its legal advisers, that copy was subject to legal professional privilege. The dominant purpose of making the copy sent to the legal advisers was that of seeking legal advice. Whether the protection extended to the copy of the report held in the accountant’s office was the point in issue in the case. Justice Finn, with whom Merkel J agreed, noted that he had already commented upon what he considered:
“… to be the patent artificiality flowing from the denial of privilege in such circumstances. If Pratt Holdings had its own and appropriately qualified accounting staff which prepared a like report, that report would have been privileged. Equally, if it had directed Pricewaterhouse to send the report directly to ABL [Arnold Bloch Liebler, the legal advisers], it would likewise be privileged as Pratt Holdings would have thus constituted PricewaterhouseCoopers its agent to make the, or else a part of the: see Propend at 571-572; communication by Pratt Holdings to ABL for the purpose of obtaining legal advice.”[45]
[45] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128 at [39]; 367; 226; 136 per Finn J
His Honour did not consider that the accountant could be regarded as an agent of Pratt Holdings for the purpose of gathering and collating information in the report. It did not assume a representative capacity on behalf of Pratt Holdings. Instead, the accountants undertook work for Pratt Holdings, which it delivered to that company. He returned to the rationale for the existence of legal professional privilege and found that it justified the extension of legal professional privilege to communications of the sort represented by the accountant’s report. The following passage explains the thinking of Finn J on this matter:
“ To deny that a third party is an agent in such circumstances does not, though, provide a sufficient or principled reason for denying privilege to the documentary communication (or contents) it has authored. The important consideration in my view is not the nature of the third party’s legal relationship with the party that engaged it but, rather, the nature of the function it performed for that party. If that function was to enable the principal to make the communication necessary to obtain legal advice it required, I can see no reason for withholding the privilege from the documentary communication authored by the third party. That party has been so implicated in the communication made by the client to its legal adviser as to bring its work product within the rationale of legal advice privilege.
There are, in my view, clear reasons of policy that support extending the privilege to such third party authored documentary communications. Whether a natural person be a corporation, a party seeking to obtain legal advice may not have the aptitude, knowledge, skill and expertise, or resources to make adequately, appropriately or at all such communication to its legal adviser as is necessary to obtain the advice required. Such is commonplace today where advice is sought on complex and technical matters. To deny that person the ability to utilise the services of a third party to remedy his or her own inability or inadequacy unless he or she is prepared to forego privilege in the documents prepared by the third party, is to disadvantage that person relatively to another who is able adequately to make the desired communication to a legal adviser by relying upon his or her own knowledge, resources, etc.”[46]
[46] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128 at [41]-[42]; 367-368; 226-227; 136-137
Justice Finn emphasised that care must be taken in evaluating the purpose for which a third party performs a professional function for a principal. Care must be taken in characterising the relationship, for a relationship between the principal and the third party such as client/accountant or client/assessor will not attract legal professional privilege in the course of their communications. Merely seeking advice from other professionals while also seeking advice from a legal adviser will not render those other advices subject to legal professional privilege merely by the fact that they have been sought or even by the fact that they will all become the basis of an informed decision by the person seeking the advice. If the person should send a copy of those other advices to the legal advisers for legal advice, those copies will be privileged. That will not alter the character of the copies held by the other professional advisers. If originally outside the protection of the privilege, they will remain so. As Finn J explained:
“… Those other advices will not later acquire the character of privileged documents in the respective adviser’s hands: cf Propend; merely because the principal subsequently makes the advices available to his or her lawyer when obtaining legal advice. Importantly, as Deane J observed in Baker v Campbell at 112, privilege does not ‘extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production’. – Neither does it extend to third party advices to the principal simply because they are then ‘routed’ to the legal adviser.”[47]
[47] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128 at [46]; 369; 227-228; 137
Again emphasising the need to identify the principal’s purpose in seeking written documentation from a third party, Finn J turned to the relevance of the principal’s conduct in relation to that documentation. That must be considered in addition to the principal’s stated intention:
“… [T]he principal may have so conducted himself or herself in the matter as to indicate that the intended use of the document authored by the third party was not its communication to the legal adviser as the principal’s communication, but rather it was to advise and inform the principal concerning its subject matter, with the principal then determining (a) in what manner, if at all, the whole or part of the document would be used by the principal in making its own communication or (b) the purpose(s) for which the document could or should be used. The less the principal performs the function of a conduit of the documentary information to the legal adviser, the more he or she filters, adapts or exercises independent judgment in relation to what of the third party’s document is to be communicated to the legal adviser, the less likely it is that that document will be found to be privileged in the third party’s hands. This will be because the intended use of the document is more likely to be found to be to advise and inform the principal in making the principal’s communication to the lawyer (whether or not that communication embodied wholly or substantially the content of the document) and not to record the communication to be made.”[48]
[48] [2004] FCAFC 122; (2004) 136 FCR 357; 207 ALR 217; 56 ATR 128 at [47]; 369; 228; 137-138
| I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
.....[sgd]...................................................................
Associate
Dated: 29 November 2018
| Heard: | 1, 6, 7 and 23 March 2018 |
| Counsel for the Applicant: Solicitor for the Applicant:
| Mr Andrew Broadfoot QC and Ms Brooke Hutchins Ms Naomita Royan Dr Phillip Bender and Mr Adrian Hoel |
| Solicitor for the Respondent: | Ms Judith Birch Australian Securities and Investments Commission |
“Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”
The exception to the opinion rule expressed in s 76 on the basis of specialised knowledge is set out in s 79.
Section 79(1) provides:
“If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”
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