Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd
[2021] FCA 511
•14 May 2021
FEDERAL COURT OF AUSTRALIA
Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511
File number: NSD 1316 of 2020 Judgment of: WHITE J Date of judgment: 14 May 2021 Catchwords: PRIVILEGE – objection to the inspection of subpoenaed material on the basis of legal professional privilege – grant of immunity from civil and criminal action related to disclosed cartel conduct on the condition of full and frank disclosure under the immunity policies of the Australian Competition and Consumer Commission and the Commonwealth Director of Public Prosecutions – whether material brought into existence for the purpose of obtaining legal advice in seeking and obtaining the immunities is privileged.
PRIVILEGE – implied waiver – whether the objector waived its privilege by its actions in seeking and obtaining the immunities or by its partial disclosure of the privileged material – objection overruled in relation to the greater part of the subpoenaed documents.
Legislation: Competition and Consumer Act 2010 (Cth) ss 44ZZRF and 44ZZRG (repealed), 45
Director of Public Prosecutions Act 1983 (Cth) s 9
Federal Court of Australia Act 1976 (Cth) s 23HE
Income Tax Assessment Act 1936 (Cth)
Federal Court (Criminal Proceedings) Rules 2016 (Cth) r 8.13(1)
Criminal Procedure Act 1986 (NSW) s 82
Cases cited: Arnold Bloch Leibler (A firm) v Slater & Gordon Limited [2020] FCA 1496
Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796
Attorney‑General (NT) v Maurice (1986) 161 CLR 475
Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232
AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382
AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30
Bailey v Director General, Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333
Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 242 ALR 601
British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; (2011) 195 FCR 123
British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816
Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121
Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341
Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247
Council of New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236
Daniels Corporation Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 6) [2019] FCA 337; (2019) 369 ALR 267
Glencore International AG v Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646
Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529
Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd [1993] FCA 548; (1993) 43 FCR 408
Hall v Arnold Bloch Leibler (a firm) [2020] FCA 1495
Hartogen Energy Ltd (in liq) v Australian Gas Light Co [1992] FCA 322; (1992) 36 FCR 557
Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305; (2016) 339 ALR 635
Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185
Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332
National Crime Authority v S (1999) 29 FCR 203
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275
State of Victoria v Tabcorp Holdings Limited [2013] VSCA 180
Z v New South Wales Crime Commission [2007] HCA 7; (2007) 231 CLR 75
Zantran Pty Ltd v Crown Resorts Limited (No 2) [2020] FCA 1024
Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 203 Date of hearing: 19 March 2021 Counsel for the Prosecutor: Mr J Giles SC with Ms H Mann Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions Counsel for the subpoenaed parties: Mr B Walker SC with Mr S Hartford Davis Solicitor for the subpoenaed parties: Gilbert + Tobin Counsel for the First Accused: Mr C Moore SC with Ms A Bonnor Solicitor for the First Accused: Herbert Smith Freehills Counsel for the Second Accused: Mr N Clelland QC Solicitor for the Second Accused: MinterEllison Counsel for the Third Accused: Mr D Wong Solicitor for the Third Accused: Watson Mangioni Lawyers Counsel for the Fourth Accused: Mr R Pietriche Solicitor for the Fourth Accused: Horton Rhodes Counsel for the Fifth, Sixth and Seventh Accused: Mr M Thangaraj SC with Ms E Sullivan Solicitor for the Fifth Accused: King & Wood Mallesons Solicitor for the Sixth and Seventh Accused: Arnold Bloch Leibler Counsel for the Eighth Accused: Mr J Sheahan QC with Ms S Pananiappan Solicitor for the Eighth Accused: Allens Counsel for the Ninth Accused: Mr M Darke SC Solicitor for the Ninth Accused: Corrs Chambers Westgarth ORDERS
NSD 1316 of 2020 BETWEEN: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor
AND: CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LTD ACN 003 114 832
First Accused
ITAY TUCHMAN
Second AccusedJOHN WILLIAM MCLEAN (and others named in the Schedule)
Third Accused
ORDER MADE BY:
WHITE J
DATE OF ORDER:
14 MAY 2021
THE COURT ORDERS THAT:
1.The objection of JP Morgan Securities Australia Ltd, JP Morgan Australia Pty Ltd and JP Morgan Administrative Services Australia Limited (together JPMA) to the Commonwealth Director of Public Prosecutions (the CDPP) and the accuseds inspecting those portions of the documents produced in answer to the subpoenas served on 11 January 2021 in respect of the Type B, Type C and Type D categories of privilege described in the affidavit of Joshua Seth Kyle made 12 February 2021 (the Kyle Affidavit) is upheld.
2.The objection of JPMA to the CDPP and the accuseds inspecting those portions of the subpoenaed documents for which privilege of category Type A described in the Kyle Affidavit is overruled and the CDPP and each of the accuseds have leave to inspect those portions of the documents.
3.JPMA is, by 21 May 2021, to produce to the Court a further set of the subpoenaed documents containing redactions of only the Type B, Type C and Type D categories of privilege with a view to the documents containing only those redactions being provided for inspection by the CDPP and the accuseds.
4.Upon the receipt by the Registrar of the subpoenaed documents referred to in Order 3, the Registrar is to permit the CDPP and each accused to inspect the documents produced pursuant to that Order.
5.JPMA is, by 21 May 2021, to inform my Associate and each of the parties whether an application for costs or expenses pursuant to r 8.13(1) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) is pursued, noting that, in the event that such a claim is so notified, the Court may make orders in Chambers for the exchange of written submissions so that any issues may be determined on the papers.
6.There be liberty to the parties to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHITE J:
On 1 June 2018, the Commonwealth Director of Public Prosecutions (the CDPP) charged three corporate entities and six individuals with having participated in cartel conduct in the period between 7 August and 30 September 2015. The conduct was alleged to have arisen out of the institutional share placement undertaken by Australia and New Zealand Banking Group Limited (ANZ) in August 2015 (the ANZ Share Placement) for which JP Morgan Australia Pty Limited (JPMAPL), Deutsche Bank Aktiengesellschaft (Deutsche Bank) and Citigroup Global Markets Australia Pty Ltd (Citigroup) were the joint lead managers and underwriters (the JLMs).
ANZ, Deutsche Bank and Citigroup are the three corporate entities which are the subject of the criminal charges and the six charged individuals were at the time employees of one or other of these entities.
The committal proceedings in relation to the charges have concluded and, on 15 December 2020, the Notice of Committal was filed in the Court. On 1 February 2021, the CDPP filed an indictment against the nine accused. It alleges 42 counts of cartel conduct in contravention of ss 44ZZRF and 44ZZRG of the Competition and Consumer Act 2010 (Cth) (the CC Act) as in force in 2015, but not all the accuseds are subject to all counts.
On 11 January 2021, the CDPP served subpoenas on three members of the JPMorgan Chase & Co Group (JPMorgan), namely, JPMAPL, JP Morgan Securities Australia Ltd (JPSAL) and JP Morgan Administrative Services Australia Limited (JPMASAL) (together JPMA). The subpoenas required JPMA to produce the notes of interviews and outlines of evidence which JPMorgan’s in‑house lawyers and its legal advisors, Gilbert + Tobin, had prepared between 7 September 2015 and 10 November 2015.
JPMA responded to the subpoenas on 27 January 2021 stating that it had identified 147 documents answering the description of the subpoenaed documents. It objected to the production or inspection of all but nine of these documents (later varied to 13) and, in respect of the 13, objected to inspection of portions of them on the basis of legal professional privilege. JPMA listed all the documents in a schedule (the Objection Schedule) and identified the basis of claims for legal professional privilege in relation to each.
This judgment concerns the questions of whether privilege did attach to the documents when they were brought into existence and, if so, whether it has been waived by the subsequent conduct of JPMA. Those questions are to be determined in the context that JPMA sought and obtained conditional immunities from civil action from the Australian Competition and Consumer Commission (the ACCC) and immunity from criminal prosecution from the CDPP under their respective immunity policies.
The indictment is the docket of Wigney J and it is expected that his Honour will be the trial Judge. It was thought undesirable that Wigney J hear and determine the objection by JPMA to production and/or inspection of the subpoenaed documents. Accordingly, on 11 February 2021, Wigney J made an order that “the interlocutory application” be listed for hearing before me. As there is no filed “interlocutory application” to which this order can refer, I have regarded it as referring to JPMA’s objection to production and/or inspection made before Wigney J on 27 January 2021. No party suggested that this understanding was inappropriate.
At the hearing, the Court heard submissions from counsel for JPMA, the CDPP, Deutsche Bank, Citigroup and ANZ. Counsel for Deutsche Bank also announced an appearance for Mr Ormaechea (the sixth accused) and Mr Richardson (the seventh accused). The Court had previously received short outlines of submission from the third accused (Mr McLean), Mr Ormaechea, Mr Richardson and Mr Moscati (the ninth accused). Although represented at the hearing, the third and fourth accuseds (Messrs McLean and Roberts) effectively made no submissions. A number of the accuseds adopted the submissions made by others.
JPMA claims the privilege. It was not suggested that, for the purposes of determining the two questions now before the Court, any distinction should be made between JPMA, on the one hand, and JPMorgan, on the other.
For the reasons which follow, I consider that JPMA has shown that the notes of interview and outlines of evidence were protected by legal professional privilege at the time they were brought into existence but that, save for some limited categories, JPMA waived that privilege by its disclosure of the contents of portions of the documents to the CDPP in October and November 2020.
The ACCC Immunity Policy
Because of its centrality to the submissions of JPMA and the parties, it is appropriate to commence by identifying relevant features of the ACCC Immunity and Cooperation Policy for Cartel Conduct (the ACCC Policy) pursuant to which JPMA was granted conditional immunity from civil action. It was common ground that it is the terms of the ACCC Policy issued in September 2014 which are pertinent presently.
The purpose of the ACCC Policy is stated in its preface:
An immunity and cooperation policy in relation to cartels encourages insiders to provide information and enables the ACCC to penetrate the cloak of secrecy. When the extent of the immunity to be provided, or the process for recognising cooperation with law enforcement authorities is certain, persons are more likely to take advantage of such a policy and disclose legal and harmful conduct.
Just as importantly, an immunity and cooperation policy that provides incentives to businesses and individuals to disclose illegal behaviour is also a powerful disincentive to the formation of cartels, as potential participants will perceive a greater risk of ACCC detection and court proceedings. An immunity and cooperation policy does not offer a reward to ‘good corporate citizens’. It is a detection tool designed to deliver benefits to all Australians by identifying, stopping and taking action against harmful and illegal behaviour.
The ACCC Policy commences with a statement that it “sets out the policy of the ACCC in relation to applications for immunity from ACCC-initiated civil proceedings by those involved in cartel conduct, and how cooperation provided to the ACCC by cartel participants will be recognised”.
The “cartel conduct” to which the ACCC Policy refers is conduct in contravention of Div 1 of Pt 4 of the CC Act (which in 2015 and 2016 included ss 44ZZRF and 44ZZRG) and in contravention of s 45(2) of the CC Act.
A cartel participant may seek both civil and criminal immunity in respect of cartel conduct (cl 4). The responsibility for granting those immunities lies with the ACCC and the CDPP respectively (cl 5). An application for immunity is to be made to the ACCC in accordance with the procedures set out in the ACCC Policy, as it is the sole point of conduct for applications for both forms of immunity (cl 4).
The ACCC assesses applications for immunity against the eligibility criteria contained in the ACCC Policy (cl 6). When it considers that an applicant is eligible for “conditional civil immunity” it will, when relevant, make a recommendation to the CDPP to grant criminal immunity subject to conditions (cl 6).
The ACCC Policy provides for three forms of civil immunity: corporate, derivative, and individual. It also provides for two principal stages in the grant of civil immunity: conditional and final. Subject to one proviso, a corporation is eligible for conditional immunity from ACCC-initiated civil proceedings when the eligibility criteria specified in cl 16 are satisfied. Those criteria include:
(a)the corporation having applied for immunity under the ACCC Policy (cl 16(a));
(b)the corporation being or having been a party to a cartel, whether as a primary contravenor or in an ancillary capacity (cl 16(a)(i));
(c)the corporation admitting that its conduct in respect of the cartel may constitute a contravention or contraventions of the CC Act (cl 16(a)(ii));
(d)the corporation being the first person to apply for immunity in respect of the cartel under the ACCC Policy (cl 16(a)(iii)); and
(e)the corporation providing full, frank and truthful disclosure, cooperating fully and expeditiously while making the application, and undertaking to continue to do so during the ACCC’s investigation and any ensuing court proceedings (cl 16(a)(vii)).
Derivative immunity is available to corporate entities related to the corporation which qualified for conditional immunity and to its current and former directors, officers and employees involved in the cartel conduct (cl 19).
Because of the advantage in being the first to apply for immunity, the ACCC Policy permits a person or entity proposing to seek an immunity to approach the ACCC “to request the placement of a marker” (cl 38). The effect of such a placement is to preserve for a limited period the marker recipient’s status as the first applicant for immunity in respect of the cartel (cl 39). This allows marker recipients time “to gather the information necessary to demonstrate that they satisfy the requirement for conditional immunity” (cl 40). So long as a recipient holds the marker for particular cartel conduct, no other person involved in the same conduct will be permitted to take its place in the immunity queue, even if that person is able to satisfy all the eligibility conditions immediately (cl 41).
An applicant seeking a marker may do so on “a hypothetical, anonymous basis” but must disclose sufficient information to allow the ACCC to confirm that no other person has applied for immunity or obtained a marker in respect of the cartel (cll 42 and 43).
The next step for a marker recipient who wishes to proceed with an application for immunity is to make a “proffer” to the ACCC in the manner for which cll 44‑47 provide:
44.After obtaining a marker from the ACCC, if a party decides to proceed with an immunity application, it will need to provide a detailed description of the cartel conduct. This is known as a ‘proffer’ and can be made orally or in writing. However, the ACCC will create its own records in respect of all marker requests and applications, including proffers received, whether the applications are oral or written.
45.If a proffer is made orally, the ACCC may record the oral proffer. Recording an oral proffer enables an accurate record of the proffer to be submitted to the ACCC’s legal advisors so that they may provide advice to the ACCC on whether the applicant has been a party to a cartel.
46.The proffer will need to disclose sufficient information to determine whether the applicant satisfies the criteria for conditional immunity (as outlined in paragraph 16 for corporations and paragraph 28 for individuals).
47.The applicant will be required to provide specific detail as to the type of evidence that can be provided to the ACCC. The ACCC may require an interview with one or more witnesses, or the production of certain documents to determine whether the applicant meets the conditions for immunity.
(Emphasis added)
When the eligibility requirements are satisfied, the ACCC will grant the applicant conditional immunity in relation to the civil proceedings which it may otherwise have brought against the applicant (cl 55), will inform the applicant of the terms and conditions on which the conditional immunity is granted (cll 55 and 56), and will, when relevant, recommend that the CDPP grant criminal immunity subject to conditions (cl 53). Generally, a letter of comfort from the CDPP regarding criminal immunity subject to conditions is provided to the immunity applicant at the same time as the ACCC’s letter granting conditional civil immunity (cl 55).
With respect to grants of final immunity, cll 57‑59 in the ACCC Policy provide:
57.In order to receive final immunity the applicant is required to satisfy the following conditions:
(a)maintain eligibility criteria for conditional immunity (as outlined in paragraph 16 for corporations and paragraph 28 for individuals)
(b)provide full, frank and truthful disclosure, and cooperate fully and expeditiously on a continuing basis throughout the ACCC's investigation and any ensuing civil or criminal proceedings, and
(c)maintain confidentiality regarding its status as an immunity applicant and details of the investigation and any ensuing civil or criminal proceedings unless otherwise required by law or with the written consent of the ACCC.
58.Conditional civil immunity will become final immunity at the conclusion of any ensuing proceedings provided the applicant does not breach any conditions of immunity and maintains eligibility under this policy.
59.An undertaking pursuant to section 9(6D) of the DPP Act granting criminal immunity subject to conditions will remain in place unless revoked and therefore an undertaking from the CDPP granting final criminal immunity is not required.
(Emphasis added)
Clauses 60‑63 describe a process by which the ACCC may, if it considers that the immunity applicant has breached the conditions upon which the conditional immunity was granted, inform the applicant that it no longer qualifies for immunity and recommend to the CDPP that the criminal immunity also be revoked.
Undertakings not to prosecute by the CDPP
Section 9(6D) of the Director of Public Prosecutions Act 1983 (Cth) (the DPP Act) permits the CDPP to give a person an undertaking that the person will not be prosecuted for a specified offence against a law of the Commonwealth or in respect of specified acts or omissions that constitute, or may constitute, an offence against a law of the Commonwealth. Section 9(6F) provides that an undertaking under subs (6D) may be subject to such conditions, if any, as the Director considers appropriate.
Annexure B to the Prosecution Policy of the Commonwealth contains the CDPP’s criteria for granting immunity from prosecution for serious cartel offences (which in 2015 and 2016, included ss 44ZZRF and 44ZZRG). It contemplates two steps after the CDPP has exercised independent discretion in relation to a recommendation from the ACCC (cll 3.4‑3.6): first, the CDPP issuing a “letter of comfort” to the effect that the CDPP intends to grant criminal immunity to the applicant in relation to the disclosed cartel conduct in the event that a prosecution is commenced (cl 3.6); and, secondly, the CDPP determining, before commencing any prosecution, whether to grant a written undertaking pursuant to s 9(6D) of the DPP Act granting criminal immunity in respect of the disclosed cartel conduct (cl 3.6).
Clause 3.7 of Annexure B provides:
3.7Both the letter of comfort and any subsequent undertaking under the DPP Act will be subject to the party complying with certain conditions throughout the period of the ACCC investigation and until the conclusion of any criminal proceedings against other cartel participants. Those conditions will be specified in the relevant letter of comfort or undertaking under the DPP Act and will include that:
3.7.1the party must comply with a cooperation agreement entered into with the ACCC, including by providing on-going full cooperation during the ACCC investigation; and in respect of an individual that:
3.7.2they will appear as a witness for the prosecution as and where requested in any proceedings against the other cartel participants; and
3.7.3 any evidence they are called upon to give will be given truthfully, accurately and withholding nothing of relevance.
Clause 5 in Annexure B provides for the circumstances in which the DPP may withdraw a letter of comfort or revoke a written undertaking provided under s 9(6D) of the DPP Act.
The evidence
The whole of the evidence at the objection hearing was documentary. It comprised two affidavits from Joshua Kyle tendered by JPMA (a principal affidavit made 12 February 2021 and an affidavit in reply made 15 March 2021), an affidavit by Rodney Ferral‑Smith tendered by the CDPP, an affidavit by Andrew Eastwood tendered by Citigroup, an affidavit from Peta Stevenson tendered by Deutsche Bank, and an affidavit of Belinda Thompson tendered by ANZ. Counsel for Deutsche Bank tendered one additional letter.
None of the deponents was required to attend for cross‑examination.
Factual setting
The matters I record in this section of the reasons (and the next two sections) should, unless otherwise indicated, be regarded as factual findings.
On about 10 August 2015, the Litigation, Asia Pacific Group within JPMorgan (APAC Litigation) commenced an internal review of aspects of the conduct of JPMA in relation to the ANZ Share Placement (the Internal Review). Mr Kyle, who at the time held the position of Executive Director and Assistant General Counsel in the APAC Litigation team and Ms Jennifer Parkinson, Managing Director Corporate & Investment Bank (Global) and Litigation (APAC) had primary responsibility for the Internal Review. Mr Kyle deposed to the purpose of the Internal Review in [27] of his affidavit (the Paragraph 27 Matters):
27.The JPMorgan Internal Review was undertaken to gather information about the conduct which occurred during the 2015 ANZ Placement for the purpose of APAC Litigation, and any external legal advisers engaged by JPMorgan, providing confidential legal advice to JPMorgan, including JPMorgan Australia, in respect of:
(a)any actual or potential legal risk, exposure or other concern to JPMorgan arising from that conduct; and
(b)how any such legal risk, exposure or concern might be managed and/or mitigated, including by applying to the [ACCC] for immunity under the ACCC's [Immunity Policy] …
Mr Kyle also deposed (and I accept) that the primary steps taken in the Internal Review were to retrieve and review primary documents and communications relating to the ANZ Share Placement and to conduct interviews with the JPMA employees involved in that Placement.
On Friday, 28 August 2015, JPMorgan retained Gilbert + Tobin as external legal advisors. Mr Kyle deposed at [28] that Gilbert + Tobin were retained “to advise JPMorgan in respect of issues arising from the 2015 ANZ Placement, including competition law issues and the matters described in paragraph 27 above, and to assist with the conduct of the JPMorgan Internal Review”.
On the day following their retainer, Saturday, 29 August 2015, Ms Cass‑Gottlieb at Gilbert + Tobin sent an email at 8.17 am to the ACCC requesting a marker under the ACCC Policy. The email stated (relevantly):
On behalf of our client I am requesting a marker in respect of trading in the market for securities in ASX listed companies in respect of securities issued in a capital placement.
On Monday, 31 August 2015, the ACCC granted a “first‑in” marker to Gilbert + Tobin’s then unidentified client, with that marker to expire at 5 pm on 7 October 2015. The ACCC successively extended the period of the marker to 26 February 2016. All the Interview Notes and Evidence Outlines sought by the subpoenas emanated from interviews conducted after JPMA had obtained the first‑in marker.
In the period between 7 September and 2 November 2015, lawyers from Gilbert + Tobin and Mr Kyle and Ms Parkinson interviewed nine JPMA employees. There were 11 interviews in total. Mr Kyle participated in all of the interviews and Ms Parkinson in seven. The Gilbert + Tobin lawyers, Mr Kyle and Ms Parkinson each made notes during the interviews recording the substance of what they were told by the JPMA employees (the Interview Notes). Mr Kyle deposed in [33] of his affidavit that he had made notes during the employee interviews so that he would have “a record of the information each interviewee provided about the conduct which occurred during the 2015 ANZ Placement, which APAC Litigation and Gilbert + Tobin could then use for the purpose of providing confidential legal advice to JPMorgan, including [JPMA], in respect of the [Paragraph 27 Matters]”.
Mr Kyle also deposed, and I accept, that during the employee interviews:
(a)each Gilbert + Tobin lawyer … was at all times acting in their capacity as a legal adviser to JPMorgan pursuant to the engagement described at paragraph 28 above;
(b)Ms Parkinson and I were at all times acting in our capacities as legal advisers to JPMorgan, including JPMorgan Australia, pursuant to the engagement described in paragraphs 24 to 27 above; and
(c)Mr Christopher was acting in his capacity as an independent legal adviser to Jeffrey Herbert-Smith in respect of issues arising from the 2015 ANZ Placement.
Mr Christopher, to whom Mr Kyle referred in subpara (c), was an independent lawyer retained by Mr Herbert‑Smith, one of the JPMA employees who was interviewed.
Mr Kyle instructed Gilbert + Tobin to “memorialize” the accounts given by the JPMA employees during the interviews. Gilbert + Tobin did so by preparing draft outlines of evidence (Evidence Outlines) for each employee. Mr Kyle deposed at [35] that he had instructed Gilbert + Tobin to “memorialize” the accounts of the employees “so that APAC Litigation and Gilbert + Tobin would have records of the information each interviewee had provided about the conduct which occurred during the 2015 ANZ Placement, which APAC Litigation and Gilbert + Tobin could use for the purpose of providing confidential legal advice to JPMorgan, including [JPMA] in respect of the [Paragraph 27 Matters]”.
Mr Kyle also deposed (and I accept) that, other than in the case of the non‑redacted portions of the 13 documents to which JPMA makes no objection to inspection, neither the Interview Notes nor the Evidence Outlines have been disclosed to anyone other than in‑house lawyers employed, and external legal advisers engaged, by JPMorgan.
On 9 November 2015, lawyers from Gilbert + Tobin, HWL Ebsworth (who had also been retained by JPMorgan) and Mr Kyle attended an office of the ACCC to make orally the “proffer” contemplated by cl 44 of the ACCC Policy. The Court was provided with relatively little evidence concerning the content of the proffer. This was understandable as each of JPMorgan and the ACCC claims legal professional privilege with respect to the recording of, and notes taken during, the meeting. Mr Kyle did, however, depose that the Interview Notes and Evidence Outlines were not disclosed to, nor discussed with, the ACCC during the 9 November 2015 meeting. He described the “proffer” as being “a high‑level overview of the events which had occurred during the 2015 ANZ Placement and the possible legal implications of these events”, without any particular matters being attributed to an account of any of the JPMA employees in his or her interviews.
On 26 February 2016, the ACCC informed Gilbert + Tobin that it considered “JPMorgan” to be eligible to be considered for conditional immunity under the ACCC Policy.
By letter to the ACCC dated 21 March 2016, HWL Ebsworth applied for civil and criminal immunity for JPMAPL and for derivative immunity for JPMSAL and nine employees. By an email on 10 May 2016 to Gilbert + Tobin, the ACCC attached its own letter granting conditional civil immunity to JPMAPL and conditional derivative civil immunity to two of its employees (Mr Dewar and Mr Herbert‑Smith) and a letter of 6 May 2016 from the CDPP granting criminal immunity to the same persons.
By letter dated 1 June 2016, Gilbert + Tobin sought civil and criminal immunity for JPMASAL with derivative immunity to JPMAPL and JPMSAL.
By letter dated 23 June 2016, the ACCC informed Gilbert + Tobin that it had substituted JPMASAL as the immunity applicant, that it granted it conditional civil immunity and that it granted derivative civil immunity to JPMAPL, JPMSAL and to eight employees of JPMASAL. It also provided to Gilbert + Tobin a letter from the CDPP of 23 June 2016 containing the grant of criminal immunity to each of the same persons.
The ACCC letter informed Gilbert + Tobin that JPMASAL had been granted conditional immunity in respect of cartel conduct in which it had engaged “with two competing investment banks in connection with the arrangement of the placement of new fully paid shares in the capital of ANZ on 7 August 2015” and continued:
The conduct involves the investment banks entering into contracts, arrangements or understandings containing cartel and/or exclusionary provisions, including provisions with the purpose, effect or likely effect of:
[5.1]preventing, restricting or limiting the supply by the investment banks of interests or rights in ANZ shares to persons or classes of persons; and/or
[5.2]fixing, maintaining or controlling the price of ANZ shares supplied or likely to be supplied by the investment banks,
contrary to ss 44ZZRJ and/or 45(2) of the [CC Act].
The ACCC letter then set out the conditions on which conditional immunity was granted:
[9] This grant of conditional civil immunity is subject to the following conditions.
Conditions
[9.1]JPM Administrative Services must continue to provide full, frank and truthful disclosure and cooperation to the ACCC and withhold nothing of relevance.
[9.2]JPM Administrative Services must continue to satisfy the eligibility criteria for immunity under the Immunity Policy.
[9.3]JPM Administrative Services must undertake to maintain, and must maintain, confidentiality with respect to its cooperation with the ACCC.
…
[11]In applying for immunity under the Immunity Policy, JPM Administrative Services acknowledges that the ACCC’s grant of immunity is conditional. The ACCC may revoke this conditional grant of civil immunity in accordance with the Immunity Policy if JPM Administrative Services fails to satisfy the conditions in paragraph 9 of this letter.
[12]If the ACCC revokes conditional immunity, the ACCC and/or the CDPP may use against your client in proceedings for breach of the law, any documentary or other information your client has provided.
The letter from the CDPP of 23 June 2016 stated that the grant of conditional immunity was subject to the following conditions:
[i]That JPM Administrative Services/the Derivative Immunity Applicant continues to provide full, frank and truthful disclosure and cooperation to the ACCC (including by withholding nothing of relevance) throughout the course of the ACCC’s investigation and any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct.
[ii]That JPM Administrative Services/the Derivative Immunity Applicant continues to satisfy the eligibility criteria for immunity under the Immunity Policy and Annexure B throughout the course of the ACCC’s investigation and any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct.
[iii]That JPM Administrative Services/the Derivative Immunity Applicant undertakes to maintain, and does maintain, confidentiality with respect to both its/their co-operation with the ACCC and any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct.
(Emphasis added)
At various times since March 2016, the ACCC has itself interviewed the JPMA employees and, on the basis of those interviews, has prepared witness statements which have been provided to the accuseds.
The ACCC and the CDPP seek the Interview Notes and Evidence Outlines
The committal proceedings on the charges against the accused commenced in the Local Court of New South Wales in 2019. The examination of witnesses under s 82 of the Criminal Procedure Act 1986 (NSW) concluded on 24 July 2020. In the course of the committal proceedings, various of the accuseds had pressed the CDPP to provide them with the documents generated during the Internal Review.
By a letter on 10 August 2020 to Gilbert + Tobin, the ACCC, at the instigation of the CDPP, asked JPMA to provide a description of the documents it held recording its employees’ accounts provided during the Internal Review in which it said:
The [CDPP] has now requested that [JPMA] identify and provide a brief description of all documents in its possession or control that record an account of events provided by a Relevant Person … in the course of the investigation conducted by or on behalf of JPMA, concerning the ANZ institutional share placement in August 2015.
The letter went on to define a “Relevant Person” to be one of 10 employees of JPMA.
Gilbert + Tobin responded to the ACCC on 18 August 2020 informing it of the steps taken to identify the documents requested, offering to provide a schedule listing the notes and interview memoranda prepared by Gilbert + Tobin in late 2015 identified to that time, and indicating the time necessary to undertake an exhaustive review to identify all the documents which might match the description in the ACCC request. They concluded their letter with an assertion of legal professional privilege:
For the avoidance of doubt, communications and documents made/or prepared in connection with the Internal Review are subject to claims for legal professional privilege which JPMorgan has not waived and does not waive.
On 19 August 2020, Mr Bezzi and Ms Won of the ACCC discussed the CDPP request with Ms Cass‑Gottlieb and Mr Mackenzie of Gilbert + Tobin, but the evidence did not disclose the content of that discussion. In a letter the following day, the ACCC informed Gilbert + Tobin:
Following our discussion, we have spoken with the CDPP and the CDPP has asked us to seek the following from you on behalf of your client:
a.a schedule listing all notes and internal interview memoranda (as described in your letter) prepared by Gilbert + Tobin in late 2015; and
b.a schedule listing any notes taken by JP Morgan lawyers during the 2015 interviews (as defined in your letter).
By letter dated 28 August 2020, Gilbert + Tobin provided a schedule (the 28 August Schedule) listing 72 separate documents, comprising:
(a) the notes of each of the 2015 Interviews taken by Gilbert + Tobin Lawyers;
(b)the internal interview memoranda prepared by Gilbert + Tobin in respect of each 2015 interview between September and November 2015; and
(c)the notes taken during the 2015 Interviews by JP Morgan lawyers in attendance.
Gilbert + Tobin repeated the assertion of legal professional privilege in the documents identified in the 28 August Schedule.
Ms Cass‑Gottlieb and Mr Mackenzie discussed the ACCC request with the ACCC on 11 September 2020. In that discussion, the ACCC officers conveyed the CDPP’s request that JPMA produce the Evidence Outlines and provide an undertaking that the Outlines did not omit any material matter contained in the Interview Notes. The ACCC followed up that request with an email to Gilbert + Tobin on 14 September 2020 in which it said:
We have spoken with the CDPP and clarified the two issues that you raised with us during our conversation on 11 September 2020.
First, you informed us that the draft outlines and proofs of evidence were not shown to or acknowledged by the witnesses and asked whether that would affect the CDPP's position. We have confirmed that the CDPP's position is that it requires JP Morgan to produce these documents notwithstanding the fact that they were not shown to or acknowledged by the witnesses. If the CDPP forms the view that these documents need to be disclosed to the defendants, it will inform the defendants of the fact that they have not been shown to or acknowledged by the witnesses.
Second, you asked whether there were additional measures that could be put in place to restrict access to the draft outlines and proofs of evidence to external lawyers, at least during the case conference phase. The CDPP's position is that if the draft outlines or proofs of evidence contain confidential information, which has not already been disclosed to the defendants in these proceedings as part of the brief of evidence, JP Morgan should identify that information when is (sic) discloses the documents to the CDPP. When the CDPP reviews the documents, it will give consideration to whether this information can be redacted or access can otherwise be restricted. We note that the case conferences themselves are confidential and there is a prohibition on publication of any case conference material in s80 of the Criminal Procedure Act NSW.
(Emphasis added)
There were further telephone discussions between Gilbert + Tobin and the ACCC in September 2020. It is apparent that the CDPP, via the ACCC, was placing pressure on JPMA to produce the Evidence Outlines by reference to the conditions to the grant of conditional immunity conveyed on 23 June 2016. That was evident in the ACCC email to Gilbert + Tobin on 21 September 2020 (referred to in [72] of Mr Kyle’s first affidavit) which included:
The purpose of this email is to inform you that the CDPP has noted that the Director’s criminal immunity to [JPMASL] was subject to the condition that JPM “continues to provide full, frank and truthful disclosure and co‑operation to the ACCC (including by withholding nothing of relevance) throughout the course of the ACCC’s investigation and any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct”.
The CDPP’s position is that it requires JPM to disclose the items requested in my email dated 14 September 2020 as part of JPM’s co‑operation in the Operation Deacon prosecutions.
(Emphasis added)
That letter led to three meetings between the lawyers from Gilbert + Tobin, the ACCC and the CDPP in late September 2020.
At the first meeting, on 25 September 2020, the Gilbert + Tobin lawyers asserted JPMA’s legal professional privilege. The CDPP lawyers explained the forensic purpose of the CDPP in seeking production of the Interview Notes and Evidence Outlines, including the relevance (and importance) of disclosure of the initial accounts of the JPMA employee to the discharge by the CDPP of her duty of disclosure in the criminal prosecution. Ms Cass‑Gottlieb alluded to the possibility of the documents being subpoenaed and it seems there was some discussion about the extent to which JPMA’s privilege could be protected.
At the second meeting, on 29 September 2020, the Gilbert + Tobin lawyers emphasised JPMA’s concern to maintain its legal professional privilege but conveyed the willingness of JPMA to participate in a meeting with the CDPP in which they would provide orally “the answers likely to be given by the JPMA [witnesses] from their first accounts”, using the language given by the witnesses in those first accounts. Gilbert + Tobin did not have instructions at that stage as to a recording by the CDPP of those accounts. The term “first accounts” was a reference to the accounts given by the employees as recorded in the Interview Notes and Evidence Outlines, these being the first in time of accounts given by the employees.
At the third meeting on 30 September 2020, the CDPP stated the necessity for the oral accounts proposed by Gilbert + Tobin to be recorded and asked if Gilbert + Tobin could provide a transcript of them. Ms Cass‑Gottlieb responded that JPMorgan was comfortable with “running through slowly” the accounts from the Evidence Outlines but did not wish to provide them in writing. A CDPP lawyer asked “can you explain how waiver (I infer waiver of the legal professional privilege) works given JPM’s proposal?” Ms Cass‑Gottlieb responded by saying that the Gilbert + Tobin lawyers would “use the language of the first account without reading out the full account to address the area of consistency of evidence”. She also referred to the “level of comfort” which JPMorgan sought in the process.
It seems that agreement was reached on 30 September 2020 on the process for partial oral disclosure of the evidence outlines. Mr Kyle deposed to the instructions which he had given in relation to this process:
[75]… I instructed Gilbert + Tobin to provide an "oral proffer" to the CDPP, being an oral description of the factual evidence which JPMorgan expected each Relevant Person would give at trial in respect of the core conduct in which they were involved during the 2015 ANZ Placement based on the account that person provided during the 2015 Witness Interviews, as recorded in the Interview Notes and Outlines of Evidence.
(Emphasis added)
Mr Kyle also deposed that, when he gave this instruction, he had understood that JPMASAL and the derivative immunity holders were at risk of losing their conditional immunity:
[73] I understood that:
(a)the immunity granted by the CDPP to JPMASAL (as described in the CDPP’s letter dated 23 June 2016 referred to in paragraph 43 above) was conditional and that JPMASAL was required to continue to comply with all conditions imposed by the CDPP on its grant of immunity in order to retain immunity from criminal prosecution; and
(b) the CDPP’s position described in paragraph 72 above meant JPMASAL, as the primary immunity holder, as well as the derivative immunity holders, were at risk of losing their immunity from criminal prosecution by the CDPP if JPMorgan did not disclose the information described in the ACCC’s 14 September 2020 email.
At the objection hearing, JPMA submitted that the evidence showed that it had been “effectively compelled” to make the partial disclosures to the CDPP in late 2020.
The partial disclosures in October and November 2020
The meetings in which Gilbert + Tobin made oral disclosure of parts of the Evidence Outlines occurred on 2 October 2020 and on 13 November 2020. The attendees at the first meeting were Ms Cass‑Gottlieb and Mr Mackenzie from Gilbert + Tobin and Ms Single SC, Mr Ferral‑Smith, Ms Neville and Mr McGinness from the CDPP. The attendees at the second meeting were Ms Cass‑Gottlieb and Ms Platford from Gilbert + Tobin, and Mr Ferral‑Smith and Ms Boyle from the CDPP.
In the first meeting, Ms Cass‑Gottlieb and Mr Mackenzie took turns reading aloud passages from the Evidence Outlines of Messrs Herbert‑Smith, Galvin, Dewar and Bainbridge. In the second meeting, Ms Cass‑Gottlieb did all the reading.
The second meeting was preceded by a meeting on 6 November 2020 in which Mr Ferral‑Smith asked Ms Cass‑Gottlieb and Mr Mackenzie to have JPMA provide oral accounts from the remaining six JPMA witnesses. He also informed Ms Cass‑Gottlieb and Mr Mackenzie that the ACCC witness taking methods were being challenged by the accuseds, so that the ACCC wished to obtain the “first accounts” of all the remaining witnesses “to demonstrate [their] consistency or inconsistency with the accounts given to [the] ACCC”. JPMA acceded to the ACCC request and, in the second meeting, Ms Cass‑Gottlieb read aloud from the Evidence Outlines of Mr Priestley, Mr Newton, Ms Tranter, Mr Best and Mr Leung.
The information which Ms Cass‑Gottlieb and Mr Mackenzie provided in the two meetings corresponded with, and was drawn from, the unredacted portions of the 13 documents produced by JPMA in answer to the subpoenas to which it makes only a partial objection to inspection. JPMA does not object to inspection of those unredacted portions.
Mr Kyle deposed, and it was not disputed, that in each meeting, the Gilbert + Tobin lawyers provided the accounts by reference to identified topics. They did so by saying words to the effect “this is the evidence JP Morgan expects will be given in respect of [the topic] by [the named employee] based on their first account”. They did not provide any other information corresponding with, or drawn from, the subpoenaed documents.
Lawyers from the CDPP took notes during the meetings on 2 October and 13 November 2020. The manner in which Ms Cass‑Gottlieb and Mr Mackenzie read from the documents in the respective meetings facilitated the CDPP lawyers making verbatim notes.
Following each meeting, CDPP staff transcribed the accounts given orally and, on 21 October and 16 November 2020 respectively, the CDPP provided each accused with a copy of the transcribed accounts. Those provided on 21 October 2020 comprised nine and a half typed pages and indicated the evidence which JPMA expected to be given by the employees on 12 topics. Those provided on 16 November 2020 comprised seven and a half pages and indicated the evidence which JPMA expected to be given by the employees on 14 topics.
The CDPP provided to Gilbert + Tobin drafts of the transcribed accounts given on 13 November 2020 so as to give them the opportunity to suggest any amendments before they were provided to the accuseds. Gilbert + Tobin did suggest some edits and the CDPP took account of those in the transcriptions which were provided to the accuseds. The evidence did not disclose whether the CDPP had done likewise with respect to the transcribed accounts following the meeting on 2 October 2020. I infer that it did not but am satisfied in any event that JPMA, by Mr Kyle, knew at the time of each meeting, that the CDPP would provide transcribed accounts to the accuseds. So much had been made plain in the ACCC email to Gilbert + Tobin on 14 September 2020 set out earlier in these reasons.
The 12 topics in respect of which on 2 October 2020 the Gilbert + Tobin lawyers read the evidence expected to be given by the four employees were:
Topic 1:
10 am call on Friday, 7 August 2015 – discussion in relation to ANZ share.
Topic 2:
10 am call – what was the ANZ involvement in the discussion about trade in the 10 am call?
Topic 3:
Discussion and recollection of incentive fee.
Topic 4:
Change in JPM trading strategy on the Friday.
Topic 5:
Compliance being brought in on Friday.
Topic 6:
5 pm Syndicate call on Friday
Topic 7:
The Perpetual Trade.
Topic 8:
Call between the banks on Saturday at 10:38 am – discussion of the manner of trading in ANZ shares.
Topic 9:
10:38 am call – incentive fee
Topic 10:
Saturday issuer call – around 11 am – what was the nature of the ANZ involvement on the call?
Topic 11:
Monday 10 August – trading of ANZ stock.
Topic 12:
End point of the Syndicate.
Ms Cass‑Gottlieb used (at least in substance) the same topic headings on 13 November 2020 in reading the expected evidence of the JPMA employees, but included two additional topics:
·9 am call on Friday 7 August; and
·Syndicate and issuer calls – role of Syndicate banks.
It was the Gilbert + Tobin lawyers or JPMA who identified the topics, not staff of the CDPP.
It was not in issue that, until making the partial disclosures on 2 October 2020, JPMA had maintained the confidentiality of the documents in question.
JPMA’s claims of legal professional privilege
JPMA claims privilege on four different bases over portions of the 147 documents.
The first category (to which JPMA referred as “Type A”) is a claim in respect of parts of 13 documents in the Objection Schedule and in respect of the whole of the remainder on the basis that these were records created by Gilbert + Tobin and APAC Litigation lawyers during and shortly after the employee interviews “for the purpose of JPMorgan obtaining confidential legal advice from Gilbert + Tobin and in‑house JPMorgan lawyers in connection with the 2015 ANZ capital raising”. The documents in this category are said to have been prepared for the dominant purpose of JPMorgan obtaining legal advice, that is, they recorded factual matters on the bases of which legal advice was sought.
The second category (Type B) concerns parts of the 147 documents recording communications said to have been made for the dominant purpose of JPMorgan obtaining legal advice in connection with the ANZ Share Placement “jointly with other parties at the time of the 2015 ANZ capital raising”. Mr Kyle deposed that the documents in this category record confidential communications between the JLMs and Allen & Overy, who had been retained jointly by the JLMs to provide legal advice to them during the ANZ Share Placement, and were prepared for the dominant purpose of the provision of that advice.
The third category (Type C) is a claim in respect of parts of the documents said to have been made for the dominant purpose of JPMorgan obtaining legal advice in connection with the 2015 ANZ capital raising “at the time” of the 2015 ANZ capital raising. Mr Kyle deposed that the documents in this category record confidential communications between JPMA employees and APAC Litigation or Gilbert + Tobin lawyers during the ANZ Share Placement for the dominant purpose of those lawyers providing legal advice in respect of matters arising from or relating to the Placement.
The final category (Type D) is a claim in respect of parts of the 147 documents said to record communications made for the dominant purpose of JPMorgan obtaining legal advice in connection with the 2015 ANZ capital raising “following the 2015 ANZ capital raising”. Mr Kyle deposed that the communications in this category comprise internal notes or comments made by APAC Litigation or Gilbert + Tobin lawyers for the dominant purpose of those lawyers providing legal advice to JPMorgan, including JPMA, in respect of the Paragraph 27 Matters. In its reply submissions, JPMA clarified that the Type D claims are made only in respect of documents of this kind.
JPMA’s Objection Schedule identifies with specificity the parts of each document to which it is said each category of legal professional privilege attaches. The Type A claims comprise the great majority of the claims with the Type B, C and D claims being made in the main only in respect of particular sentences or parts of sentences. There are instances in which the privilege Types overlap.
Neither the CDPP nor any of the accuseds seek access to those portions of the documents for which JPMA claims privilege in the Type B and Type C categories. Further, they do not seek access to any parts of the documents in the Type D category to the extent that those parts disclose the substance of legal advice provided to JPMA, as distinct from disclosing factual matters. That is to say, the CDPP and the accuseds do not seek access to those parts of the documents in Type D containing legal advice, or comments in the nature of legal advice, to JPMA.
JPMA produced to the Court the 13 documents for which it claims legal professional privilege over portions only with those portions redacted. Pursuant to an order of the Court, JPMA produced to the Court all the remaining documents but inspection of these documents has been denied to the CDPP and the accuseds pending the determination of JPMA’s claim of privilege. These documents are, in the main, the Interview Notes and the drafts and final versions of the Evidence Outlines prepared by the Gilbert + Tobin lawyers and by JPMA’s in‑house lawyers between 7 September and 10 November 2015, although there are three documents (Nos 145‑147) bearing 2016 dates.
Legal professional privilege – principles
It is the common law principles concerning legal professional privilege which are to be applied in this case: Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [3]‑[4], [16]‑[28], [64].
Legal professional privilege is a substantive principle of the common law with an important role in the effective and efficient administration of justice: Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 93‑4. It has been described as “a practical guarantee of fundamental constitutional or human rights” and “a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality”: Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121 at 161.
Legal professional privilege, when it exists, precludes the coerced disclosure of information or documents which would reveal communications between clients and their lawyers made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels Corporation Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, (2002) 213 CLR 543 at [9]; Esso at [35], [61].
In Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685, Stephen, Mason and Murphy JJ stated the rationale for the privilege:
The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exercised by judicial decision.
This passage in Grant v Downs was endorsed by the High Court in Glencore International AG v Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646 at [27].
Legal professional privilege, when it exists, is (subject to some exceptions which are not presently pertinent) unqualified and will operate despite other matters of important public interest. Thus, in Glencore the High Court said:
[29]It was recognised in Grant v Downs that there was another, more general, public interest which legal professional privilege did not promote. That public interest lies in the fair conduct of litigation, which requires that all relevant documentary evidence be available. But the public interest which supports the privilege is paramount to the more general public interest. In the provision of the privilege the law has struck the balance between two competing public interests. Consequently, once the privilege is found to exist, no more is required for effect to be given to it. In that sense it may be described as absolute.
[30]The paramountcy afforded to the public interest which the privilege supports can have serious consequences. By way of example, an accused person can be denied access to documents which might assist his or her defence. Because of the significance of the effect of the privilege on the conduct of litigation, and the other considerations identified in Grant v Downs, it was there said that the privilege "should be confined within strict limits". That note of caution was to be repeated in subsequent cases.
(Citations omitted)
The proposition that persons cannot be compelled to produce on subpoena documents which are subject to legal professional privilege, even though those documents may establish the innocence of persons charged with criminal offences or materially assist their defence, was affirmed in Carter v Northmore Hale Davy & Leake.
Several of the submissions sought to elaborate the meaning of “dominant purpose”. Counsel for JPMA noted that, in Esso at [58], Gleeson CJ, Gaudron and Gummow JJ had regarded the following statement as appearing close to a dominant purpose test, namely, that “if a document is created for the purpose of seeking legal advice, but the maker has in mind to use it also for a subsidiary purpose which would not, by itself, have been sufficient to give rise to the creation of the document, the existence of that subsidiary purpose will not result in the loss of privilege”.
Several counsel referred to Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 in which, in relation to a provision in the Income Tax Assessment Act 1936 (Cth), the plurality said that “in its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing, or most influential purpose”. Counsel noted that this meaning of “dominant” has been applied in the context of several disputes about the existence of legal professional privilege, including Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247 (CoT v Pratt Holdings) at [30]; AWB Ltd v Cole [2006] FCA 571, (2006) 152 FCR 382 at [105]; Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [39].
The parties’ submissions referred to several other non‑contentious propositions concerning the existence of legal professional privilege, including:
(a)it is JPMA which has the onus of establishing its claim for privilege. It may do so by reference to the nature of the documents recording the communications or by evidence: Grant v Downs at 689;
(b)the evidence relied upon to establish a claim for privilege must be focused and specific: Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 242 ALR 601 (Barnes v CoT) at [18]. Evidence must be provided in respect of each communication: Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 at [29]. Conclusionary assertions of purpose are not sufficient to make out a claim for privilege: National Crime Authority v S (1999) 29 FCR 203 at 211; Kennedy v Wallace [2004] FCAFC 337, (2004) 142 FCR 185 at [13]; Barnes v CoT at [18];
(c)the purpose for which a communication is made or a document brought into existence is a question of fact, to be determined objectively having regard to the evidence, the nature of the communication or documents and the parties’ submissions. That purpose will ordinarily be that of the maker of the communication or document, although that may not always be the case: Hartogen Energy Ltd (in liq) v Australian Gas Light Co [1992] FCA 322, (1992) 36 FCR 557 at 568; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59, (2002) 4 VR 332 at [14];
(d)putting to one side copying of documents, the dominant purpose for the creation of a document is to be determined at the time of its production;
(e)the evidence given by the maker of the document or by the person who authorised or procured it as to its purpose is not conclusive of the issue of purpose, and the privilege is not “necessarily or conclusively established by resort to any verbal formula or ritual”: Grant v Downs at 689; Hartogen Energy at 568‑9. However, an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: CoT v Pratt Holdings at [30];
(f)if a communication was made or a document brought into existence for two purposes, both of which are of equal weight, neither can be said to be the dominant purpose;
(g)it is open to the Court to find that parts only of a document were created for the dominant purpose attracting privilege: Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd [1993] FCA 548, (1993) 43 FCR 408 at 415; CoT v Pratt Holdings at [30];
(h)the privilege is that of the client, not of the lawyer: Z v New South Wales Crime Commission [2007] HCA 7; (2007) 231 CLR 75 at [35]; and
(i)communications made or documents prepared for the dominant purpose of obtaining legal advice do not cease to be privileged because the communication or document is not ultimately used for that purpose: Grant v Downs at 677; Kennedy v Wallace at [230]‑[234] (Allsop J).
Are the documents privileged?
I have not relied on this submission, for two reasons: first, because it seeks to invoke a more general conception of unfairness than that which is relevant to the assessment of the requisite inconsistency and, secondly, because it would involve the Court in construing the metes and bounds of the conditions upon which the CDPP granted the immunity. That is an issue which could come before the Court in a substantive way. For example, the CDPP could have insisted on full disclosure of the materials which she now seeks to inspect. Had she done so and JPMA disputed its obligation to do so under the terms of the conditional immunity, the issue may then, by one or more means, have come before the Court for determination. A number of matters would then require consideration. In the view I take, these matters are best left until they truly require determination and the Court will have the benefit of full submissions.
Counsel for Deutsche Bank emphasised features of the statement taking process adopted by the ACCC, features of the manner by which the CDPP had discharged her duty of disclosure in the criminal proceedings, JPMA’s purpose in making the limited disclosure (which he submitted was to assist the CDPP in complying with her duty of disclosure), the “unquestionable relevance” of the Interview Notes and Evidence Outlines to the criminal proceedings and the prejudice to the accuseds if they are denied access to the material. Counsel for Mr Moscati made submissions to similar effect. I have not relied on these matters, taking the view that they were not directed to the more confined notion of fairness which is pertinent for present purposes. Instead, using the expression from Mann v Carnell, they were directed to notions of fairness at large in the context of the anticipated criminal trial. It is neither necessary nor appropriate in this case for the Court to adjudicate upon the matters required by the CDPP’s duty of disclosure nor upon the manner in which that duty has been discharged to date.
In the inspection of the documents, I have paid closer regard to the Evidence Outlines (including their earlier drafts) than to the Interview Notes. The latter are not easy to read, being in hand writing, using abbreviations, and reflecting to an extent “in‑house” understandings of elements of JPMA’s business shared by the interviewer and the interviewee.
Without descending into detail, my inspection confirms the appropriateness of the preliminary conclusion expressed above. My firm impression is that, in the assessment of the “core conduct”, a reasonably confined view of conduct of that character was taken with the consequence that matters of background, chronology and statements concerning the employees’ states of mind which informed their conduct were excluded. I consider that, without disclosure of these matters, the perceptions of the disclosed material are likely to be incomplete and inaccurate.
My review of the documents also suggests that, with limited exceptions (and putting to one side the Type B, C and D categories of privilege), the subject matters addressed in the Evidence Outlines are not separate and distinct from the disclosed matters. The Jones v Dunkel inference to which I referred earlier can be drawn even more confidently. Regard to the unredacted versions of the documents suggests that the redactions in the 13 documents containing partial redactions give them a certain lack of coherence and, in some instances, a disjointedness.
The inspection also confirms that the JPMA submission that the unredacted portions of the 13 documents can be read and understood without resort to further material within the same document and that the redacted versions contain “severable” statements of fact should not be accepted. It also indicates that the selection of the “core” aspects of the employees’ conduct is not sufficient to provide a full account of the evidence which those employees are able to give concerning the alleged cartel conduct.
Having made the inspection, I am confirmed in my view, based on the evidence, that JPMA’s conduct in making the partial disclosures on 2 October and 13 November 2020 was inconsistent. It is inconsistent for JPMA to seek to maintain the confidentiality of the balance of the documents when, in the pursuit (or defence) of its own strategic and commercial interests, it has disclosed portions of them and has in addition made express and implied representations about the nature and character of that which it was disclosing. Moreover, if the CDPP and the accuseds do not have access to the balance of the Evidence Outlines (again putting to one side the Type B, C and D categories of claimed privilege), they will not have an accurate and complete understanding of that which has been disclosed. In short, there is inconsistency in JPMA’s assertions about the extent of that which it has disclosed, on the one hand, and the maintenance of its confidentiality, on the other, and unfairness to those to whom the documents have been disclosed.
Finally, I do not accept JMPA’s “chilling effect” submission. It overlooked that neither the CDPP nor the accuseds are seeking access to legal advice provided to JPMA. Further, a “chilling effect” submission to the effect made by JPMA could be made in almost any case in which there are disputes about waiver arising from partial disclosure of a document and yet that has not been regarded as a factor bearing upon the inconsistency of conduct and maintenance of confidentiality which is at the heart of imputed waiver.
This conclusion makes it unnecessary, strictly speaking, to consider the other bases for imputed waiver for which the CDPP and the accuseds contended. However, in case the matter goes further, I will express my views briefly.
The conduct in interviewing the employees
As noted earlier, the CDPP submitted that waiver should be imputed to JPMA by reason of its conduct in interviewing the relevant witnesses and recording what they said in handwritten notes and in outlines of evidence. Counsel did not develop a submission concerning this act of waiver.
This submission of the CDPP should not be accepted. First, to do so would be incongruous because it would require the Court to find that the conduct bringing the privilege into existence is the same conduct by which that privilege was waived. Secondly, as JPMA submitted, conducting interviews and recording what is said by witnesses is an ordinary incident of the provision of legal advice. What the privilege holder later does with that advice is a matter for it. In this case, the advice could have been to the effect that JPMA did not need to seek immunity or that doing so was not appropriate for other reasons. It could scarcely be contended that in that circumstances, the interviewing of the witness and the preparation of the Interview Notes and Evidence Outlines constituted a waiver of the privilege.
JPMA’s conduct in seeking and obtaining the conditional immunities
It is convenient to consider together the effect of JPMA’s conduct in commencing and continuing the immunity application process and in applying for conditional civil and criminal immunity.
The CDPP and the accuseds were not able to point to any act of disclosure of the privileged material by JPMA in the course of it seeking and obtaining the grants of conditional immunity. They did not contest Mr Kyle’s evidence that the Interview Notes and Evidence Outlines were not disclosed to, or discussed with, the ACCC during the 2015 oral proffer, that in that proffer JPMA had provided a high level overview of the events which had occurred during the ANZ Share Placement and the possible legal implications of those events, and that the 2015 oral proffer had not involved any particular facts or information being attributed to an account of events provided by one of the employees during the interviews.
As noted earlier, the ACCC has also claimed legal professional privilege with respect to the contents of the 2015 oral proffer but Mr Bezzi’s evidence in the committal hearing confirmed that the proffer had been at a “high level”. In these circumstances, the submission of ANZ and other accuseds that JPMA had “engaged in conduct inconsistent with the maintenance of the confidentiality which the privilege was designed to protect by disclosing sufficient information to be granted the immunity cannot be accepted.
In my view, there was no inconsistency in JPMA causing an investigation to be undertaken for the purpose of the provision of legal advice, obtaining legal advice on the basis of the results of that investigation and then, on the basis of that advice, seeking the grants of immunity. That is particularly so given that neither the ACCC Policy nor the CDPP Policy required the disclosure of privileged material as a condition of the grant of the immunities. On the contrary, the ACCC respected the existence of the privilege, as the evidence of Mr Bezzi indicated that the ACCC appreciated that doing so facilitated the reporting to it of cartel conduct.
JPMA’s position in this respect is analogous with that described by Hodgson JA in Council of the NSW Bar Association v Archer at [48]:
… It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question ...
The imposition of the condition by the ACCC and the CDPP, and JPMA’s acceptance of the condition, that it provide “full, frank and truthful disclosure and cooperation … including by withholding nothing of relevance” was not of itself inconsistent with the maintenance of the confidentiality of the communications. JPMA’s acceptance of the immunities and their conditions served only to bring into existence a conditional state of affairs. JPMA thereby put itself in a position in which it could be required to make the choice which it did ultimately in late 2020, namely, either waive the privilege or run the risk of losing the immunities granted to it. No inconsistency of conduct occurred merely because it had decided to put itself into a position in which it may have to make that choice.
For these brief reasons, had it been necessary to do so, I would not have upheld the submissions of the CDPP and the accuseds that there was an imputed waiver by the various acts of JPMA in seeking and accepting the grants of conditional immunity.
The Type D privilege
As earlier noted, JPMA claims privilege of the Type D category of communications on the basis that they comprised only internal notes or comments made by Gilbert + Tobin or in‑house JPMorgan lawyers on the Interview Notes and Evidence Outlines for the dominant purpose of those lawyers providing advice and that those notes and comments have not otherwise been disclosed.
My inspection of the documents confirmed that Type D is limited to notes and comments of the type described by JPMA. The CDPP and the accuseds did not seek inspection of the notes and comments. Accordingly, the application for leave to inspect those parts of the documents for which JPMA claims the Type D privilege is refused.
Conclusion
For the reasons stated above, on JPMA’s objection to inspection by the CDPP and the accuseds of the documents produced pursuant to the subpoenas, my ruling is that the parties may inspect those documents and parts of documents for which JPMA makes a claim of privilege of Type A but leave is not granted for them to inspect those documents or portions of documents for which claims of privilege of the Types B, C and D are made.
Costs
In addition to seeking an order upholding its claims to privilege, JPMA sought an order for costs. Counsel for JPMA referred to r 8.13(1) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) which provides:
The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.
Counsel submitted that the term “any reasonable loss or expense incurred in complying with the subpoena” extended to the costs of the argument about JPMA’s privilege.
Counsel for the CDPP submitted that the Court lacks the power to make a costs order in criminal proceedings. He referred to s 23HE of the Federal Court of Australia Act 1976 (Cth) which provides:
Nothing in this Act gives the Court power to award costs in indictable primary proceedings.
The submissions which the Court received concerning this issue were relatively brief and were made without reference to the authorities bearing on r 8.13(1), its State and Territory counterparts and its predecessor.
As JPMA has, in substance, been unsuccessful in its opposition to those parts of the subpoena documents which were in issue at the objection hearing, the question may be moot in the present case. I will, however, give the parties the opportunity to make further submissions concerning costs.
I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White. Associate:
Dated: 14 May 2021
SCHEDULE OF PARTIES
NSD 1316 of 2020 Accused
Fourth Accused:
STEPHEN ROBERTS
Fifth Accused:
DEUTSCHE BANK AKTIENGESELLSCHAFT
Sixth Accused:
MICAHEL RENE ORMAECHEA
Seventh Accused:
MICHAEL HUGH RICHARDSON
Eighth Accused:
AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522
Ninth Accused:
RICHARD MARC MOSCATI
8