LEON ZWIER and and AUSTRALIAN COMPETITION AND CONSUMER COMMISSION - [2012] AATA 52

[2012] AATA 52

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/1053

2010/1265

Re

LEON ZWIER

APPLICANT

And

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

And

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

JOINED PARTY

File Number(s)

2010/1252

Re

LEON ZWIER

APPLICANT

And

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

RESPONDENT

DECISION

Tribunal
Mr John Handley, Senior Member

Date 1 February 2012

Place Melbourne
1.The decisions of the Respondents in each application opposing the applications to either waive or displace legal professional privilege (LPP) are affirmed.
2.The decisions under review in applications 2010/1252 and 2010/1053 are affirmed.
3.The following documents in application 2010/1265 are not privileged from production on the basis of LPP and the Applicant is entitled to have a copy of:
a)the email of Ms Thompson of 10 October 2008 and the attachment to it comprising document 32;
b)the list of documents dated 3 October 2008 attached to the email of 6 October 2008 found at document 63; and

c) page 2 of the document found at document 99.
In all other respects, the decision in 2010/1265 is affirmed.

.............................[sgd]...............................
Mr John Handley, Senior Member
FREEDOM OF INFORMATION – civil proceedings between ACCC and another resolved by consent before the Federal Court – terms of settlement included an agreement of facts stated as not being an admission outside the context of the civil proceedings – terms read to the Court by counsel for the ACCC and read by the presiding Judge – terms recited in published reasons – CDPP later commenced criminal proceedings – the agreement was identified in the Prosecutor's Case Statement and filed with the brief of evidence in the Federal Court – decision by Federal Court that the agreement was not an admission for the purposes of the prosecution but cross-examination over it would be permitted – whether conduct of the Respondents constituted a) a breach of express or implied undertakings not to use the agreement b) improper purpose or illegal object c) contempt of the Federal Court – whether documents exempt and privileged from production on the ground of legal professional privilege (LPP) or irrelevance – whether LPP displaced by Respondents' conduct including displacement on grounds of public interest.
LEGISLATION
Evidence Act 1995 (Cth) ss 131, 191
Freedom of Information Act 1982 (Cth) ss 22, 42(1)
CASES
Attorney-General for the Northern Territory v Maurice and Others (1986) 161 CLR 475
Australian Competition and Consumer Commission v Pratt (N° 3) (2009) 175 FCR 558
Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd and Others (N° 3) (2007) 244 ALR 673
AWB Ltd v Cole and Another (N° 5) (2006) 155 FCR 30
Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd and Another (2005) 225 ALR 266
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Mann v Carnell (1999) 201 CLR 1
O’Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1983) 153 CLR 1
Osland v Secretary, Department of Justice (2010) 241 CLR 320
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (N° 2) [2007] FCA 1445
Waterford v The Commonwealth of Australia (1987) 163 CLR 54
Harman v Home Department [1983] 1 AC 280
Bibby Bulk Carriers v Cansulex Limited (1989) 1 QB 155
REASONS FOR DECISION
Mr John Handley, Senior Member

Mr Zwier (the Applicant) is a solicitor with Arnold Bloch Leibler, the firm that acted on behalf of the late Richard Pratt in civil and criminal proceedings involving contraventions of the former Trade Practices Act 1974 (Cth) (the TP Act).
The Applicant sought to obtain documents held by the Commonwealth Director of Public Prosecutions (CDPP) and the Australian Competition and Consumer Commission (ACCC) under the Freedom of Information Act 1982 (Cth) (the FOI Act). The CDPP and ACCC, the Respondents, prepared a schedule of the documents sought in each application which is reproduced later. Some documents have been released. However, the Respondents have refused to release other documents on the basis that they are privileged and therefore exempt pursuant to s 42(1) of the FOI Act or irrelevant and exempt under s 22 of the FOI Act. In order to comprehend the parties' position, a brief overview of the proceedings against Mr Pratt is necessary.
BACKGROUND
The proceedings instituted against Mr Pratt were the subject of considerable publicity between 2007 and 2009. The summary which follows is taken from the history recorded by Ryan J in Australian Competition and Consumer Commission v Pratt (N° 3) (2009) 175 FCR 558; Heerey J in Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd and Others (N° 3) (2007) 244 ALR 673; the submissions of Mr Hanks QC who appeared with Mr Gray at the hearing of these applications and the Applicant who initially appeared alone but was represented later by Mr Clelland SC.
Between January 2000 and October 2004 a number of officers within the Visy group of companies (Visy Board Pty Ltd, Visy Industries Holdings Pty Ltd and Visy Industries Australia Pty Ltd) (Visy) and officers of Amcor Limited (Amcor) were engaged in a price fixing and market sharing arrangement with respect to the supply of corrugated fibreboard packaging products in Australia. Visy and Amcor supplied over 90 per cent of that market.
In November 2004, Russell Jones, the former Managing Director and Chief Executive Officer of Amcor approached the ACCC for immunity from prosecution for his involvement in the price fixing cartel which had operated between Visy and Amcor. The ACCC then had a policy of leniency where it would grant immunity from prosecution provided that there was full disclosure of known cartel arrangements and cooperation with the ACCC in its investigations and any subsequent prosecution of other parties.
As a result of its investigation, the ACCC learnt that from early 2000, Visy and Amcor mutually agreed to increase their prices for their respective customers and also had mutual agreements concerning the prices to be charged for particular customers. Significantly, Visy and Amcor agreed that they would not deal with each other's customers but in the event that one customer decided to change supplier, the company benefiting would agree to compensate the other by a type of customer swapping arrangement. The process was described by Heerey J at [7] in the following terms:
...If, say, Amcor customer X decided to switch to Visy, Amcor and Visy would get together and decide on a Visy customer, say Y, who would be provided to Amcor as "compensation" for the loss of X. When Y's contract came up for renegotiation, Visy and Amcor would exchange details of proposed prices and other terms so as to ensure that the deal offered to Y by Visy was much less attractive than Amcor's. Y would then, as Visy and Amcor intended, accept Amcor's offer.
Part IV of the TP Act prohibited anticompetitive behaviour. Section 45 provided that corporations must not make a contract or arrangement or give effect to a provision that is likely to substantially lessen competition. Section 45A provides that a provision will be deemed to substantially lessen competition if it has the effect of fixing or controlling the price of goods or services.
After considerable investigation, the ACCC became satisfied that there had been a price fixing arrangement between Visy and Amcor within the meaning of s 45A of the TP Act which had the purpose or effect of substantially lessening competition (s 45 (2)(a)(ii)).
Mr Jones was interviewed by officers of the ACCC in May 2005 and gave an account of a discussion that he had with Mr Pratt at the All Nations Hotel in Richmond on 21 May 2001. In effect, he sought an agreement from Mr Pratt that Visy would honour the arrangement preventing major market share shifts (decision of Ryan J at [6]).
On 26 July 2005, Mr Pratt was examined pursuant to s 155 of the TP Act. The ACCC was represented by Mr Jopling QC. Mr Pratt said he had no recollection of the discussion with Mr Jones at the All Nations Hotel, or of Mr Jones informing him that an arrangement existed between Visy and Amcor and that he was seeking the support of Mr Pratt for that arrangement. Mr Pratt said that if Mr Jones suggested that an arrangement which prevented major market share shifts existed, he was lying and denied that he had ever been notified by Harry Debney, the Chief Executive Officer of Visy of such arrangements (decision of Ryan J at [9] and the Information for an Offence at Exhibit MP7).
Mr Pratt's legal representatives were aware that proceedings were being contemplated by the ACCC against Mr Pratt and others with respect to alleged breaches of the TP Act. Officers within the ACCC were also of the view that Mr Pratt had lied under oath during his s 155 examination. However, it appears the ACCC was also anxious to commence civil proceedings because it perceived that it may become statute barred from doing so.
Those proceedings were instituted in the Federal Court on 21 December 2005. A number of interlocutory steps were undertaken by both parties and eventually the proceedings were listed for hearing to commence on 1 October 2007. However, before that date a number of meetings were held between officers of the ACCC and Mr Pratt and his legal representatives in an attempt to settle the civil proceedings.
In August 2007 letters were exchanged between the Australian Government Solicitor (AGS) on behalf of the ACCC and Arnold Bloch Leibler on behalf of Mr Pratt canvassing the possibility of a mediation conference to be chaired by the Mr Michael McHugh, a retired Justice of the High Court.
Mr McHugh lodged a statement which was received into evidence in the proceedings before Ryan J and which is found in part at [30] of His Honour's decision. A draft Order was also negotiated between all relevant parties and was also annexed to the statement of Mr McHugh (relevant parts of which are found at [31] of the decision of Ryan J).
After the conference convened by Mr McHugh, there were further discussions between the parties, principally directed towards the quantum of the pecuniary penalty to which Mr Pratt would consent to on behalf of the Visy companies and, significantly, an agreement by Mr Pratt and the other Respondents that there had been an overarching understanding which had been in operation from 2000.
The overarching understanding was the market sharing arrangement negotiated between officers of Visy and Amcor between January and April 2000 and which was subsequently administered by other officers. It is described in detail at paragraph 72 of an Agreed Statement of Facts (the ASOF) lodged in the civil proceedings convened by Heerey J on 16 October 2007.
The ASOF contained a history of the cartel arrangements between Visy and Amcor and the impact on their customers. It was the basis of a resolution of the civil proceedings, subject to the approval of Heerey J, to whom the document was tendered when the matter was listed before him on 16 October 2007.
Paragraph 378 of the ASOF had considerable significance in this review. It is reproduced as follows:
The first to sixth respondents agree the facts contained herein pursuant to s 191 of the Evidence Act 1995 (C'th) for the purposes of this proceeding only. This agreement is not to be taken as an admission to these facts outside that context.
In June 2008 the ACCC commenced criminal proceedings against Mr Pratt alleging that he gave false or misleading information during the s 155 examination. The CDPP was engaged as the ACCC’s solicitor. Put another way, the ACCC was the client of the CDPP.
Before the commencement of those proceedings and during the currency of those proceedings, the CDPP briefed Mr Dean SC (now Judge Dean) and Dr Donaghue of counsel. (Written advices given by counsel are part of the documents sought by the Applicant in these proceedings).
A brief of evidence was lodged with the Federal Court by the CDPP which contained a redacted copy of the ASOF. The redacted copy only omitted matters which referred to issues of commercial confidentiality concerning some of the customers of Visy and Amcor. Paragraph 378 was not redacted.
Before the Federal Court trial against Mr Pratt commenced, a preliminary issue was determined by Ryan J following Orders made by him on 2 December 2008. The Orders were drafted in the form of questions, the first only being relevant to this review, namely, whether the Agreed Statement of Facts is admissible as evidence in these proceedings pursuant to any of sections 81, 82(b), 87 or 88 of the Evidence Act?
His Honour's reasons for decision on this issue commences at [80]. He noted that paragraph 378 of the ASOF was made pursuant to s 191 of the Evidence Act 1995 (Cth) and that document was signed by the solicitor for the first to fifth respondents (which included Mr Pratt), by a solicitor representing the ACCC and by a solicitor representing the sixth respondent.
His Honour noted that paragraph 96 of the ASOF recorded that Mr Pratt met with Mr Jones at the All Nations Hotel in Richmond on 21 May 2001 and Mr Pratt had agreed that Visy would comply with the overarching understanding. However, he was satisfied that paragraphs 96 and 378 did not contain a representation by Mr Pratt of a fact material to the present criminal proceedings (decision of Ryan J at [82]).
His Honour decided that an agreed fact within the meaning of s 191 is not limited to a fact which is or which the parties believe to be true, but includes the potential of a finding by a Court or Tribunal which, for the purposes of the proceedings before it, will not be disputed. It followed, that a representation of fact in an ASOF is not a representation of fact for all purposes (decision of Ryan J at [83]).
His Honour concluded that the representations within paragraphs 96 and 378 of the ASOF did not amount to evidence of an admission in the criminal proceedings, however the ACCC would not have been denied the opportunity to use the ASOF in the cross-examination of Mr Pratt (at [88]).
At or about the time that Ryan J delivered that decision it was learnt that Mr Pratt had a very limited life expectancy by reason of a terminal illness. The criminal proceedings were discontinued.
THE APPLICATIONS
There are three applications before the Tribunal. In each application the Applicant seeks documents held by the Respondents. The Respondents have objected to release of the documents pursuant s 42(1) of the FOI Act which is reproduced as follows:
A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.
It was contended in each application that the documents are exempt because they are privileged from production in these proceedings on the ground of legal professional privilege (LPP). In application 2010/1265 it was also contended that some of the documents are irrelevant to the request and exempt pursuant to s 22 of the FOI Act.
Application 2010/1252 concerns two documents only. The Applicant asserts that those documents are not exempt pursuant to s 42(1). The ACCC alone is the Respondent. It held a contrary position.
Applications 2010/1053 and 2010/1265 have common issues and will be discussed later. They are applications which are much more substantive, in terms of the volume of documents sought and the asserted basis for release of them, than application 2010/1252. These proceedings commenced citing the CDPP only as the Respondent. The ACCC was joined as a party by an Order made on 14 February 2011.
For the purposes of s 42(1), I am satisfied that the documents in issue in these three applications are each a document as defined as s 4 of the FOI Act. These reviews are legal proceedings. It is necessary to determine whether LPP attaches to the documents. If it does, they will be exempt from production. A few documents only attract exemption on the basis of irrelevance. LPP is the substantial basis asserted by the Respondents for the documents being exempt, and therefore privileged from production to the Applicant.
Evidence was not heard in any of the three applications. A number of Affidavits were lodged on behalf of the Respondents by Mr Alexander and Mark Pedley, a barrister and solicitor in the employ of the CDPP. Mr Hanks indicated that he was prepared to call those persons to have them confirm the contents of their Affidavits and cause them to be available for cross-examination by the Applicant. On the third day of hearing when it was anticipated that they would be cross-examined and when they were present at the Tribunal, counsel for the Applicant indicated that he did not intend to examine them.
Accordingly, the summary of facts recorded and the findings that have been made (in these applications), have emerged from the Affidavits lodged and filed, the submissions of the parties’ representatives and other material received into evidence.
In broad terms, from 1999 when the High Court delivered its judgment in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, LPP (also known as client legal privilege) protects documents prepared and communications had for the dominant purpose of giving or obtaining legal advice (Gleeson CJ, Gaudron, Gummow JJ at [61] and Callinan J at [173]). Gleeson CJ, Gaudron and Gummow JJ decided at [35] that the common law of LPP:
Protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services including representation in proceedings in a Court. ... The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers.
In AWB Ltd v Cole and Another(No 5) (2006) 155 FCR 30 at [44], Young J reviewed relevant authorities and distilled a number of principles concerning LPP, some of which are especially relevant to application 2010/1252. Those principles are:
(9)       Subject to meeting the dominant purpose test, legal 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: Sterling at 246. 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: Saunders v Commissioner of Australian Federal Police (1998) 160 ALR 469 at 472.
(10)     Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth (1987) 163 CLR 54 at 96 per Dawson J; see also Deane J at 79-82. Some cases have added a requirement that the lawyer who provided the advice must be admitted to practice: see Dawson J in Waterford at 96; GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 at 150; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at 245. However, in Commonwealth v Vance (2005) 158 ACTR 47, the Full Court (Gray, Connolly and Tamberlin JJ) did not regard the possession of a current practising certificate as an essential precondition to the availability of legal professional privilege: at [23]-[35]. The same view was taken by Lee J in Candacal at 303 [99], by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111], and by Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade (2004) 86 ALD 780 at 785 [51].
(11)     Legal professional privilege protects communications rather than documents, as the test for privilege is anchored to the purpose for which the document was brought into existence. Consequently, legal professional privilege can attach to copies of non-privileged documents if the purpose of bringing the copy into existence satisfies the dominant purpose test: Propend at 507 per Brennan CJ, 544 per Gaudron J, 553-554 per McHugh J, 571-572 per Gummow J, and 587 per Kirby J. In Propend at 512, Brennan CJ added a qualification to this principle: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the persons 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 otherwise privileged copy loses its protection.

The purpose for which communications – whether oral or written – are made will be dominant if it was the ruling, prevailing, or most influential purpose (Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 at [25]; Commissioner of Taxation v Pratt Holdings Pty Ltd and Another (2005) 225 ALR 266 at 279-280). In Pratt Holdings Pty Limited v the Commissioner of Taxation (2004) 136 FCR 357, Finn J at [35] decided that when applying the dominant purpose test the obvious starting point is with what was the intended use (or uses) of that document which accounted for it being brought into existence. The document or the communication may have been created or obtained because litigation is anticipated (O'Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1983) 153 CLR 1 at 22-23) or in connection with, anticipated or pending litigation (Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 63-64).
THE DOCUMENTS SOUGHT BY APPLICATION 2010/1252
On 3 February 2009 the Applicant wrote to the FOI officer of the ACCC (T3, page 15). Omitting irrelevant parts, the letter requested:
All documents of the Australian Competition and Consumer Commission (ACCC) and/or
(a) Robert Alexander
concerning the interview of Russell Jones on 14 January 2005 at which Robert Alexander and Geoff Williams of the ACCC were present.
This request is not to be taken to include a request for the documents of Geoff Williams.
Mr Jones was the Managing Director and Chief Executive Officer of Amcor who sought immunity from prosecution from the ACCC. One of the conditions of being granted immunity required Mr Jones to co-operate in a proposed prosecution of Mr Pratt and other Visy employees. Mr Alexander is employed by the ACCC as its General Counsel. Mr Williams is an employee of the ACCC. Mr Franklin, also an employee of the ACCC, was present at the interview. He made notes, which are embraced by the Applicant's request.
Six documents were identified. At the completion of the internal review stage, only two documents remained in issue, being documents 4 and 6 as recorded in a schedule at pages 27 and 28 of the T-Documents. The relevant descriptions of those documents as recorded in the Schedule are reproduced as follows:

Doc No Date Author Addressee Pages Description Exemption Claimed

4

14.01.05

Bob Alexander, ACCC

N/A

4

Handwritten notes of Mr Alexander of interview with witness (Mr Jones) on 14 January 2005

s 42 – entire document

6

31.01.05

Garry Franklin, ACCC

Bob Alexander, ACCC

6

Facsimile dated 31 January 2005 ‘Note for Counsel (being in substance a detailed file note of the meeting with Mr Jones on 14 January 2005)

s 42 – in relation to pages 2-6 (the attachment)

On 20 August 2010, Mr Alexander swore an Affidavit where in addition to his professional qualifications and background in government service, he referred extensively to his involvement in the proceedings brought by the ACCC against Visy and the other respondents, and the criminal proceedings instituted against Mr Pratt. His role in those proceedings is recorded at paragraphs 10 to 13 inclusive, which are reproduced as follows:
10.      I was directly involved in the civil and criminal proceedings in my capacity as the ACCC's General Counsel. I provided legal services to the ACCC, including among other things, advising on the institution of the civil proceedings, undertaking the drafting of pleadings and other Court documents, interviewing potential witnesses and drafting witness statements. I also took responsibility within the ACCC for issues of a legal nature concerning the civil proceedings more generally, including instructing AGS and counsel and dealing with solicitors representing other affected parties (such as Allens Arthur Robinson, who represented Amcor Ltd).
11.      For the period from 22 November 2004 until the conclusion of the civil proceedings on 2 November 2007, I had joint responsibility within the ACCC for the civil proceedings. Throughout the civil proceedings I worked alongside Mr Geoff Williams, another officer at the ACCC. Mr Williams is now the ACCC's General Manager of Enforcement Operations for New South Wales. At the time the civil proceedings commenced he was Director of Compliance and Enforcement in the ACCC's New South Wales regional office. From about 2 November 2007 until the conclusion of the proceedings, I had joint responsibility for the criminal proceedings on behalf of the ACCC, again working with Mr Williams.
12.      One of the tasks I undertook in connection with the civil proceedings was the interviewing and proofing of Mr Russell Jones. Mr Jones was an employee with Amcor Ltd who provided evidence of particular instances of collusive conduct by Amcor Ltd and the Visy companies in the collusive cartel arrangement between Amcor Ltd and the Visy companies. My work in this regard included meeting with Mr Jones to hear his version of events, further discussions with Mr Jones to test and clarify his version of events, preparing and reviewing draft witness statements setting out his version of events in an admissible form for the civil proceedings, advising the ACCC on prospects of success in the civil proceedings (which in January 2005 were in contemplation but not yet commenced) and, ultimately, communicating instructions to AGS concerning reliance upon Mr Jones' evidence in the civil proceedings.
13.      I (and others) met with Mr Jones on 14 January 2005 as a part of the process described at paragraph 12.
Mr Alexander was the author of document 4. It is described by him at paragraph 18(a) of his Affidavit in the following terms:
18 ...
(a) Document 4 is a copy of the handwritten notes I took during the interview conducted with Mr Jones. It is not a complete record of everything that was said in the meeting, but my notes concern issues which struck me as important during the interview.
Document 6 was described by him at paragraphs 20 to 22 inclusive, in the following terms:
20.      Document 6 is a facsimile sent to me by Mr Gary Franklin, also of the ACCC, attaching a document headed "Note for counsel". The document is, in essence, a more detailed record of the meeting of 14 January 2005 with Mr Jones (referred to in paragraph 13 above) prepared by Mr Franklin. Mr Franklin was present at the meeting with Mr Jones on 14 January 2005. Page 1 of this document (the facsimile cover sheet) has been released to the applicant.
21.      It is clear from the contents of the document and the contextual matters referred to in paragraphs 10 to 12 above, that it was provided to me in my role as General Counsel to assist in the preparation of Mr Jones' witness statement, and for advising the ACCC in connection with Mr Jones' evidence.
22.      By reason of the matters I depose to in paragraphs 10 to 21 above, the parts of documents 3 and 6 over which the ACCC asserts legal professional privilege described above, and the entire contents of documents 4 and 5, record communications prepared and/or made for the dominant purpose of use by or on behalf of the ACCC in connection with the civil proceedings.
As recorded above, Mr Alexander and Mr Franklin were the authors of documents number 4 and 6 respectively. They were both present during an interview with Mr Jones on 14 January 2005. Also present was Mr Williams.
The Applicant had been provided with the documents that Mr Williams completed at or following the meeting with Mr Jones. It follows that he has excluded those documents from his request. The CDPP released those documents on 11 August 2008 after the prosecution proceedings had commenced.
The Respondent submitted in a Statement of Facts and Contentions dated 20 August 2010 that documents 4 and 6 are exempt from disclosure pursuant to s 42(1) of the FOI Act on the basis of LPP. It was submitted that the documents amounted to confidential communications which had been brought into existence in the course of a solicitor/client relationship between Mr Alexander, the solicitor and the ACCC (the client) for the dominant purpose of giving and receiving legal advice and furthering the conduct of existing or anticipated litigation (the civil proceedings). That conduct included, but was not limited to the preparation of pleadings and witness statements, and communicating with and giving instructions to the legal representatives of the ACCC in the civil proceedings.
The Applicant lodged a Statement of Facts and Contentions on 17 September 2010 and contended:
... that the notes taken by each of the three officers of the respondent in attendance at the interview with Russell Jones on 14 January 2005 together constitute the composite or complete communication that is the subject of the respondent's claim of legal professional privilege (paragraph 9).
It was contended that by releasing Mr Williams' notes, the Respondent expressly and intentionally waived any claim for privilege over them. As a consequence, any claim for privilege over documents 4 and 6 had been waived (paragraph 11).
Additionally, the Applicant submitted that there had been a derivative waiver in relation to the documents because derivative waiver operates to extend to all documents associated with a claim of privilege that has been expressly waived (paragraph 13).
Finally, it was submitted that documents 4 and 6 were connected with the handwritten note of Mr Williams, and by disclosing only a part of the composite of a privileged communication there was unfairness on the part of the Respondent because it engenders an inaccurate perception of the disclosed communication (paragraph 14).
The Applicant's contentions at paragraph 9 that the notes made by the three officers of the Respondent present at the interview with Mr Jones, constitute the composite or complete communication is, with respect, misconceived.
The Applicant’s contentions, as I understand them seem to be as follows. The notes of Mr Williams, having been released to the Applicant as part of a prosecution brief has caused a division or fracture in the composite communication. It therefore follows that the Applicant, being aware of the contents of the notes of Mr Williams, was entitled to have knowledge of the contents of the documents of Mr Alexander and Mr Franklin (documents 4 and 6). Permission to have access to those documents follows because privilege over the composite communication has been expressly and intentionally waived by part of the communication the notes of Mr Williams constituting the remainder of the composite have been released.
Three officers of the ACCC were present at the interview with Mr Jones, namely Messrs Alexander, Franklin and Williams. They each made notes either at that interview or subsequently. Nothing points to those notes constituting a composite or complete communication.
I am satisfied that the release by the CDPP of the notes of Mr Williams during the criminal proceedings did not constitute a waiver of LPP over the documents completed by Mr Alexander and Mr Franklin. The documents were released under a duty of disclosure, by the prosecutor and the release did not amount to a waiver, either expressly or by implication. A letter from the CDPP dated 11 August 2008 expressly records that privilege was not waived by the release (Exhibit A2 Annexure 11 – Affidavit of Sue Kee, page 2).
The contention also by the Applicant that the release of the notes of Mr Williams constituted a derivative waiver over documents 4 and 6 in my view is also misconceived.
It was submitted that the documents were connected with the notes of Mr Williams, they were the composite, that release of his notes caused documents 4 and 6 liable to disclosure and failure to disclose would be unfair (Statement of Facts and Contentions at paragraphs 13 and 14).
For reasons given earlier, I am not satisfied that the three documents were somehow indivisible or inseparable or possessed a degree of connection so that disclosure of part of the composite amounted to waiver of privilege over the remaining parts.
There was a failure on the part of the Applicant to acknowledge that the notes of Mr Williams were disclosed as part of an obligation to do so in the prosecution proceedings, with an express caveat that privilege was not waived and use was confined to the criminal proceedings only. This application can be distinguished from Attorney-General for the Northern Territory v Maurice and Others (1986) 161 CLR 4765 where it was decided (at pages 487-488) that in some circumstances, the conduct of a person asserting privilege may cause a finding that there was an implied waiver over any remaining material. The basis for such a finding is grounded in fairness and to avoid an inaccurate perception of the disclosed communication. The Applicant pleaded a similar contention at paragraph 14 of his Statement of Facts and Contentions.
The documents in Maurice were part of a claim book lodged in an Aboriginal lands claim. The claim book contained documents in support of the claim. It was exchanged with all relevant parties. The Commissioner decided that despite the tender of the claim book in evidence, privilege was not waived over some of the source documents within it, being field notes, reports and background materials prepared by anthropologists and linguists. Maurice J decided that considerations of fairness in the conduct of (his) enquiry did not cause him to find that privilege adhering to the source documents should be treated as having been waived.
Unlike the factual circumstances in Maurice, the Applicant in this review obtained the notes of Mr Williams only by the obligation of the CDPP to lodge them with the Federal Court. The Applicant was at that time notified that privilege was not waived. Consistent with Maurice, in the conduct of this enquiry, I am satisfied that privilege over documents 4 and 6 should not be treated as waived.
The purpose, character and intended use of the documents completed by the three persons present at the interview of Mr Jones – by reference to their respective positions – are likely to have been for different purposes. Inspection of documents 4 and 6 satisfied this conclusion. Mr Williams' notes were made to assist him in the civil proceedings, which were then contemplated. Mr Alexander's notes (document 4), as General Counsel, were made for the dominant purpose of the contemplated civil proceedings, and, relevantly, preparation of the witness statement of Mr Jones. Mr Franklin’s Notes for Counsel, is a confidential document made for the benefit of Mr Alexander. Having read that document I am satisfied that it meets that description.
The documents have an association, namely the interview of Mr Jones. They are not a composite. Each author had a different role and responsibility and the documents were created for different purposes. Nothing points to the contents of either document having been derived from other documents which might otherwise give rise to an implied waiver. I am also satisfied it would be unfair to release documents 4 and 6, when regard is given to the basis for the Applicant having obtained Mr Williams' notes.
Having inspected documents 4 and 6, I am satisfied that they were accurately and adequately described in the Schedule of Documents.
Document 4 was completed by Mr Alexander and comprises 4, A4 pages. The entries are handwritten and without any disrespect, almost entirely illegible. The entries are very sparse. Indeed on the fourth page, only eight words appear to have been written and on the other 3 pages, not many more.
Mr Alexander has described document 4 as handwritten notes that he made in connection with the interview with Mr Jones and it is not a complete record of everything that was said in the meeting, but my notes concerned issues which struck me as important during the interview (Affidavit of Mr Alexander at paragraph 18(a)). Additionally, Mr Alexander swore in his Affidavit that the purpose of preparing document 4 was to further the preparation of the civil proceedings through the preparation of Mr Jones' witness statement.
Mr Alexander was present during the hearing. Mr Hanks said he did not intend to examine Mr Alexander but have him adopt his Affidavit and make him available for cross-examination by the Applicant. The Applicant decided not to cross-examine him. Mr Alexander therefore, did not give evidence concerning the contents of this document.
Document 6 comprises six pages and was completed by Mr Franklin. Pages 2-6 inclusive are typed and are of A4 size. The last page is dated 19 January 2005. The first page is a facsimile transmission coversheet dated 31 January 2005 which has been released to the Applicant. It records that pages 2-6 were forwarded by Mr Franklin to Mr Alexander. The typed document is entitled Note for Counsel and the same description appears on the facsimile coversheet. The person described as Counsel is Mr Alexander who was recorded as the intended recipient. The nature of the typed document is consistent with the description given by Mr Alexander at paragraph 20 of his Affidavit, being notes completed by Mr Franklin following the interview with Mr Jones on 14 January 2005 and which were provided to him, as General Counsel, to assist him in the preparation of the witness statement of Mr Jones and to advise the ACCC (Affidavit of Mr Alexander at paragraph 21).
Having read that document, I am satisfied that it contains a detailed summary of the discussions with Mr Jones at the meeting on 14 January 2005, including many references to the discussions between Mr Jones and Mr Alexander during that meeting. In the first paragraph, Mr Franklin recorded that his notes were prepared for the purpose of assisting in the drafting of a witness statement of Mr Jones. Mr Franklin also records that the Notes were provided for the benefit of Mr Alexander and to allow him to consider their contents in any contemplated litigation.
I am satisfied that documents 4 and 6 are exempt documents because they are of such a nature to be privileged from production in these proceedings on the ground of LPP (s 42(1) of the FOI Act). For the reasons also expressed earlier, the privilege has not been waived.
Having regard to the contents of the Affidavit of Mr Alexander, I am satisfied that he is a salaried legal adviser employed by the ACCC. I am satisfied from the contents of documents 4 and 6 and from his Affidavit that he was engaged in his professional capacity as General Counsel in relation to the investigation into the potential or anticipated civil proceedings against Mr Pratt and other persons; he was engaged in a lawyer/client relationship with the ACCC, during which time the documents were brought into existence and his engagement involved the recording of communications made in confidence. The Respondent is entitled to assert privilege over the documents which arose out of the interview with Mr Jones. Mr Alexander was then acting professionally, the communications within documents 4 and 6 were confidential and were made by and for him as a salaried legal adviser (refer AWB at [44(10)]; Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 95 and 96).
I am satisfied that the dominant purpose – being the prevailing or paramount purpose – was to use the documents and the communications recorded within them in the preparation of a witness statement by Mr Jones, to advise the ACCC of the merits of a civil application under the TA Act and to prepare other documents associated with those proceedings.
I am therefore satisfied that the objection to release of documents 4 and 6 should be affirmed.
APPLICATIONS 2010/1053 AND 2010/1265
The CDPP was cited initially as the Respondent in each of these applications. The ACCC was joined as a party, in each application, after the hearing commenced.

In application 2010/1053 the Applicant made a request on 2 November 2009 for documents of the following description:
All advices of Mark Dean SC and Stephen Donaghue of Counsel (Counsel) provided to the Commonwealth Director of Public Prosecutions, from time to time in the period:
(i)prior to the commencement of the prosecution of the late Richard Pratt in Federal Court proceeding VID 443 of 2008 (Criminal Prosecution); and
(ii)in connection with the Criminal Prosecution, once instituted.
including, in respect of each of the advices, all the documents reviewed by Counsel for the purposes of preparing the advice or which otherwise underpinned or influenced, expressly, impliedly or by necessary implication, the content of the advice.
The Deputy Director of the CDPP, Mr Pedley, considered the application. He identified 15 documents within the scope of the Applicant's request. He decided that all of the documents were subject to LPP pursuant to s 42 of the FOI Act and denied access to them. That decision was affirmed on internal review by Mr James Carter, also a Deputy Director of the CDPP, on 12 January 2010.
The 15 documents identified by Mr Pedley are recorded in the schedule annexed to his primary decision. The schedule identifies the document, the reviewable decision and the reasons. Against each of the 15 documents, the decision recorded is access refused and against each of the documents the reason for refusal is recorded as This document is subject to legal professional privilege (s 42 FOI Act). Rather than reproduce the whole of the schedule, only the documents and the number applicable to each document is recorded, as follows:

No Document

1.

Memorandum of Advice dated 15 May 2008

2.

Brief to Counsel dated 8 April 2008

3.

Brief to Counsel dated 15 April 2008

4.

Email from Fiona Thompson of the CDPP to Counsel dated 15 April 2008 with attachment

5.

Further email from Fiona Thompson of the CDPP to Counsel dated 15 April 2008 with attachment

6.

Email from Fiona Thompson of the CDPP to Counsel dated16 April 2008 with attachment

7.

Further email from Fiona Thompson of the CDPP to Counsel dated 16 April 2008

8.

Letter from Fiona Thompson of the CDPP to Counsel dated 30 April 2008 with enclosure

9.

Memorandum of Advice dated 21 July 2008

10.

Email from Shane Kirne of the CDPP to Counsel dated 17 July 2008 with attachment

11.

Memorandum of Advice dated 19 September 2008

12.

Email from Fiona Thompson of the CDPP to Counsel dated 27 August 2008 with attachment

13.

Email from Fiona Thompson of the CDPP to Counsel dated 5 September 2008

14.

Email from Fiona Thompson of the CDPP to Counsel dated 15 September 2008 with attachment

15.

Memorandum of Advice dated 29 October 2008

In addition to the objection raised by the Applicant for refusing access to the documents, it was contended that there was another document in existence which fell within the scope of the request, namely, a Memorandum of Advice given to Mr Williams on 7 May 2008. Mr Carter notified the Applicant that the Memorandum of Advice dated 7 May 2008 was an unsigned copy of the Advice completed by counsel on 15 May 2008 and is recorded as document 1 in the above schedule. In all other respects Mr Carter decided that the unsigned memorandum of 7 May was identical to the signed memorandum of 15 May. He decided not to include the unsigned memorandum in the Schedule of Documents. The Applicant did not take issue with that decision.
In application 2010/1265 the Applicant made a request on 13 November 2009 for documents of the following description:
All documents recording or referring to communications on 11 October 2007 between Graeme Davison of the CDPP and Geoff Williams of the ACCC, without limitation, including:
i.Graeme Davidson’s file note of 11 October 2007 recording his conversation with Geoff Williams on that date (St Kilda File Note);
ii.Graeme Davidson’s and/or the CDPP’s telephone records recording the phone call made to, or received from, Geoff Williams on 11 October 2007 in respect of which the St Kilda File Note was created;
iii.All documents concerning whether Geoff Williams made any notes recording his conversation with Graeme Davidson on 11 October 2007, in respect of which Graeme Davison created the St Kilda File Note;
iv.All emails and letters from, by or to Graeme Davidson, or sent on his behalf, that refer to the St Kilda File Note and/or the conversation in respect of which the St Kilda File Note was created;
v.All memoranda to Counsel that enclose or refer to the St Kilda File Note and/or the conversation in respect of which the St Kilda File Note was created;
vi.All emails and letters between CDPP staff and Counsel that enclose or refer to the St Kilda File Note and/or the conversation in respect of which the St Kilda Note was created;
vii.All Counsel’s written advice that refer to the St Kilda File Note and/or the conversation in respect of which the St Kilda File Note was created;
viii.All notes of conferences with Counsel in which there were discussions concerning the St Kilda File Note and/or the conversation in respect of which the St Kilda File Note was created;
ix.All ACCC memoranda, emails or other documents that refer to the St Kilda File Note and or the conversation in respect of which the St Kilda File Note was created;
x.All ACCC Commissioners’ papers that refer to the St Kilda File Note and/or the conversation in respect of which the St Kilda File Note was created;
xi.All emails and/or letters from the CDPP to the defendant and/or the defendant’s solicitors, Arnold Bloch Leibler, in Federal Court Proceeding VID 443 or 288 (Criminal Prosecution) containing the disclosure documents which include the St Kilda File Note;
xii.All drafts of letters, whether or not sent in final form, from the CDPP to the defendant and/or the defendant’s solicitors, Arnold Bloch Leibler, in the Criminal Prosecution containing the disclosure documents which include the St Kilda File Note;
xiii.All documents that record the CDPP’s duty of disclosure under the CDPP’s Disclosure Policy, or at common law, to disclose to the defence in the Criminal Prosecution the St Kilda File Note and/or the conversation in respect of which the St Kilda File Note was created;
xiv.All documents that record the CDPP’s consideration of his duty of candour, or the ACCC’s like duty, to inform the defendant and/or the Court in the Criminal Prosecution of the St Kilda File Note and/or the conversation in respect of which the St Kilda File Note was created;
xv.All documents that record that the CDPP was provided with a copy of the St Kilda File Note, when the St Kilda File Note was provided to the CDPP and to whom;
xvi.All internal emails of the CDPP and/or his staff which refer to and/or which attach a copy of the St Kilda File Note;
xvii.All CDPP minutes or notes of meetings in which the St Kilda File Note and/or the conversation in respect of which the St Kilda File Note was created was discussed;
xviii.All documents that record communications between the CDPP and the ACCC that concern or refer to the St Kilda File Note and/or the conversation in respect of which the St Kilda File Note was created.
Mr Pedley made the primary decision in this application. He identified 106 documents which satisfied the request of the Applicant. Access was granted to 44 documents (some of which had previously been released to the Applicant as part of the prosecution brief). Partial access was given to six documents. Access to the remaining 56 documents was refused. LPP, predominately, and irrelevance (s 22 of the FOI Act) was the basis for the refusal.
That decision was affirmed on internal review in a decision by Mr Mark de Crespigny, an acting Deputy Director of the CDPP on 28 January 2010.
Additionally, Mr de Crespigny identified another document which fitted within the Applicant’s request and it was identified as document 31A.
The schedule of the entire 106 documents is annexed to the decision of Mr de Crespigny. Given that 44 documents have been released to the Applicant, the schedule reproduced as follows only records those documents to which access has been refused in whole or part.

No.	Document	Decision	Reason
3.	Email dated 15 September 2008 from Fiona Thompson to Mark Dean and Stephen Donaghue (with attachment) including Email dated 12 September 2008 from Fiona Thompson to Mark Dean and Stephen Donaghue (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
4.	Email dated 23 September 2008 from Fiona Thompson to Bruce Taggart including Email dated 23 September from Bruce Taggart to Fiona Thompson including Email from Fiona Thompson to Graeme Davidson and Bruce Taggart (with attachment)	Access granted to emails Access refused to attachment	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
5.	Memorandum of Advice dated 19 September 2008 prepared by Mark Dean and Stephen Donaghue	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
6.	Email dated 8 October 2008 from Shane Kirne to Mark Dean and Stephen Donaghue	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
7.	Email dated 8 October 2008 from Evan Evagorou to Fiona Thompson and Shane Kirne (with attachment) including Email dated 7 October from Geoff Williams to Evan Evagorou and Bob Alexander (with attachment) including Email dated 6 October 2008 from Evan Evagorou to Bob Alexander and Geoff Williams (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
9.	DRAFT "Prosecutor's submissions concerning admissibility and discretionary exclusion of various admissions made by the defendant" dated December 2008 prepared by Mark Dean and Stephen Donaghue	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
10.	List of subpoena documents	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
11.	Email dated 17 September 2008 from Fiona Thompson to Bruce Taggart (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
12.	Email dated 16 September 2008 from Fiona Thompson to Bruce Taggart including Email dated 16 September 2008 from Bruce Taggart to Fiona Thompson including Email dated 16 September 2008 from Fiona Thompson to Graeme Davidson, Shane Kirne and Bruce Taggart including Email dated 16 September 2008 from Shane Kirne to Fiona Thompson including Email dated 16 September 2008 from Graeme Davidson to Shane Kirne and Bruce Taggart including Email dated 16 September 2008 from Shane Kirne to Bruce Taggart	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
13.	Email dated 11 September 2008 from Bruce Taggart to Shane Kirne (with attachment) including Email dated 11 September 2008 from Shane Kirne to Bruce Taggart including Email dated 11 September 2008 from Bruce Taggart to Shane Kirne	Access granted to attachment Access refused to emails	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
15.	Email dated 4 December 2008 from Fiona Thompson to Graeme Davidson	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
22.	Memorandum of Advice dated 29 October 2008 prepared by Mark Dean and Stephen Donaghue	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
28.	Email dated 2 October 2008 from Fiona Thompson to Bruce Taggart	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
29.	Email dated 2 October 2008 from Graeme Davidson to Fiona Thompson including Email dated 2 October 2008 from Fiona Thompson to Graeme Davidson	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
30.	Email dated 22 October 2008 from Bob Alexander to Fiona Thompson including Email dated 22 October 2008 from Fiona Thompson to Bob Alexander (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
31A	Statement of Graeme Davidson with annotations dated 14 October 2008	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
32.	Email dated 10 October 2008 from Graeme Davidson to Fiona Thompson (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
35.	Prosecutor's legal submissions concerning admissibility and discretionary exclusion of admissions dated 29 January 2009 – marked "Draft"	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
37.	Email dated 11 September 2008 from Bob Alexander to Fiona Thompson including Email dated 11 September 2008 from Fiona Thompson to Bob Alexander	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
39.	Draft letter dated 8 October 2008 from Fiona Thompson to Leon Zwier	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
44.	Statement of Graeme Davidson dated 14 October 2008 (annotated with handwritten notes) with file note dated 11 October 2007 attached	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
45.	Outline of evidence of Geoffrey Ralph Williams and annotated handwritten notes	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
48.	Draft Memorandum of advice dated 18 September 2008 prepared by Mark Dean and Stephen Donaghue	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
49.	Email dated 16 September 2008 from Fiona Thompson to Mark Dean and Stephen Donaghue including Email dated 16 September 2008 from Bruce Taggart to Fiona Thompson	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
50.	Email dated 2 October 2008 from Mark Dean to Stephen Donaghue	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
51.	Email dated 15 September 2008 from Fiona Thompson to mark Dean and Stephen Donaghue including Email dated 12 September 2008 from Fiona Thompson to Mark Dean and Stephen Donaghue	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
52.	Email dated 15 October 2008 from Fiona Thompson to Bob Alexander including Email dated 14 October 2008 from Bob Alexander to Fiona Thompson including Email dated 13 October 2008 from Fiona Thompson to Bob Alexander (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
53.	Email dated 13 October 2008 from Fiona Thompson to Mark Dean and Stephen Donaghue including Email dated 8 October 2008 from Evan Evagorou to Fiona Thompson and Shane Kirne including Email dated 7 October 2008 from Geoff Williams to Evan Evagorou and Bob Alexander (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
54.	Email dated 3 October 2008 from Mark Dean to Fiona Thompson and Stephen Donaghue including Email dated 3 October 2008 from Fiona Thompson to Mark Dean and Stephen Donaghue	Access refused	Access refused on the basts that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
55.	Email dated 29 September 2008 from Fiona Thompson to Mark Dean (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
56.	Email dated 25 September 2008 from Fiona Thompson to Mark Dean and Stephen Donaghue (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
57.	Email dated 24 September 2008 from Bob Alexander to Fiona Thompson including Email dated 24 September 2008 from Bob Alexander to Fiona Thompson including Email dated 24 September 2008 from Fiona Thompson to Bob Alexander (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
58.	File Note dated 24 September 2008 of conversation between Fiona Thompson and Bob Alexander	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
59.	Email dated 24 September 2008 from Fiona Thompson to Bruce Taggart and Graeme Davidson including Email dated 23 September 2008 from Bruce Taggart to Fiona Thompson including Email dated 23 September 2008 from Fiona Thompson to Graeme Davidson and Bruce Taggart (with attachment)	Access granted to emails dated 23 September 2008 Access refused to attachment Access refused to email dated 24 September 2008	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
60.	Email dated 23 September 2008 from Graeme Davidson to Fiona Thompson including Email dated 23 September 2008 from Bruce Taggart to Fiona Thompson including Email dated 23 September 2008 from Fiona Thompson to Graeme Davidson and Bruce Taggart (with attachment)	Access granted in part to emails dated 23 September 2008 Access refused to attachment	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
61.	Email dated 23 September 2008 from Fiona Thompson to Bruce Taggart including Email dated 23 September 2008 from Bruce Taggart to Fiona Thompson including Email dated 23 September 2008 from Fiona Thompson to Graeme Davidson and Bruce Taggart (with attachment)	Access granted to emails Access refused to attachment	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
62.	Email dated 8 December 2008 from Fiona Thompson to Richard Attiwill and Emma O'Neill (with attachment) including Email dated 13 October 2008 from Fiona Thompson to Evan Evagorou, Kerri Judd and Richard Attiwill (with attachment) including Email dated 10 October 2008 from Graeme Davidson to Fiona Thompson (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
63.	Email dated 6 October 2008 from Evan Evagorou to Fiona Thompson with attachments	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
64.	Email dated 2 October 2008 from Geoff William to Fiona Thompson including Email dated 2 October 2008 from Fiona Thompson to Geoff Williams	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
65.	Email dated 2 October 2008 from Fiona Thompson to Graeme Davidson including Email dated 2 October 2008 from Graeme Davidson to Fiona Thompson including Email dated 2 October 2008 from Fiona Thompson to Graeme Davidson	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(l) of the FOI Act.
66.	File note dated 2 October 2008 of conference with Kerri Judd and Richard Attiwill	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
67.	Table entitled "Commonwealth Director of Public Prosecution Subpoena Documents, Draft 2, 1 October 2008" prepared by the Australian Government Solicitor	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
68.	Email dated 1 October 2008 from Evan Evagorou to Fiona Thompson (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
69.	Email dated 30 September 2008 from Fiona Thompson to Evan Evagorou	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
70.	File Note dated 30 September 2008 of conversation between Fiona Thompson and Bruce Taggart	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
71.	Email dated 27 October 2008 from Mark Dean to Stephen Donaghue, Fiona Thompson, Bob Alexander and Geoff Williams including Email dated 27 October 2008 from Stephen Donaghue to Fiona Thompson, Mark Dean, Bob Alexander and Geoff Williams including Email dated 27 October 2008 from Fiona Thompson to Mark Dean, Stephen Donaghue, Bob Alexander and Geoff Williams	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
72.	Chronology of events dated 24 October 2008 prepared by Arnold Bloch Leibler – annotated copy	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
75.	Email dated 21 October 2008 from Fiona Thompson to Bob Alexander (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
76.	File Note dated 21 October 2008 of conversation between Fiona Thompson and Bob Alexander	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
77.	Email dated 22 October 2008 from Fiona Thompson to Mark Dean including Email dated 21 October 2008 from Stephen Donaghue to Fiona Thompson and Mark Dean including Email dated 21 October 2008 from Fiona Thompson to Mark Dean and Stephen Donaghue (with attachment)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
78.	Draft Letter dated 21 October 2008 from Fiona Thompson to Leon Zwier	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
79.	Notes by Geoff Williams regarding conversation with Graeme Davidson of CDPP on 11 October 2007	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
81.	List of emails dated 15/10/2008	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
82.	Email dated 15 October 2008 from Fiona Thompson to Evan Evagorou including Email dated 15 October 2008 from Evan Evagorou to Fiona Thompson and Shane Kirne including Email dated 15 October 2008 from Fiona Thompson to Evan Evagorou	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
84.	Email dated 9 December 2008 from Fiona Thompson to Geoff Williams	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
85.	Email dated 9 December 2008 from Shane Kirne to Fiona Thompson	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
87.	Draft Prosecutor's submission on evidence dated 23 December 2008	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
92.	Typed note of evidence of Geoff Williams – 10 and 11 December 2008	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
93.	Typed note of evidence of Geoff Williams – 10, 11 and 12 December 2008	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
95.	Documents produced pursuant to subpoena – working chronology (produced by AGS)	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
96.	Affidavit of Robert Menzies Alexander sworn 27 November 2008	Access granted in part	Access refused on the basis that the document contains information which is irrelevant to your request pursuant to s22 of the FOI Act.
97.	Index of documents produced under subpoena (produced by CDPP) derived from master chronology produced by counsel	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.
99.	Defendant's submissions in support of the questions or issues that the defendant contends should be determined separately to any other question or issue, pursuant to order 29 of the Federal Court Rules dated 31 October 2008 – annotated copy	Access refused	Access refused on the basis that the document contains information which is subject to legal professional privilege and is exempt from release pursuant to s42(1) of the FOI Act.

In a lengthy and comprehensive Statement of Facts and Contentions lodged by the Applicant, it was submitted that LPP does not attach to any of the documents in issue in both applications because:
...they are communications which are in furtherance of an improper purpose or an illegal object which prevents them becoming the subject of the privilege. (Refer Statement of Facts and Contentions at paragraph 4).
Those contentions arise out of or are significantly influenced by the CDPP lodging the ASOF from the civil proceedings in the prosecution brief in the criminal proceedings.
It was contended that the Respondents were bound by an implied undertaking not to use the ASOF for a purpose that is collateral or ulterior to the civil proceedings. By the ASOF being contained within the prosecution brief, the Respondents breached the implied undertaking by attempting to use the ASOF for a purpose not directly connected with the conduct of the civil penalty proceeding without leave of the Court. Support for this contention was drawn from Harman v Home Department [1983] 1 AC 280 (the Harmon implied undertaking). As a consequence, it was contended that the Respondents were in contempt of the Federal Court.
Additionally, it was contended that the ASOF and all derivative information was subject to an express undertaking given to the Federal Court in the civil proceedings that the ASOF would not be used outside those proceedings for an ulterior or collateral purpose.
It was also contended that the Respondents were aware and had knowledge that the ASOF and any derivative information could not be used without leave of the Court which was not sought. Support for this proposition was put on the basis of the contents of a file note dated 11 October 2007 – that is before the conclusion of the civil proceedings – purporting to record a discussion between Mr Davidson of the CDPP and Mr Williams of the ACCC. That file note records that:
Mr Pratt/Mr Debney perjured themselves/lied to ACCC.
Highly confidential.
After orders are given./have a chat
…
Nothing said about other proceedings.
No evidence in proceedings.
Defences submitted.
>Evidence Act s.191.
· purposes of these proceedings only.
·stat’s in public
Accepted responsibility
Denied conversat’n took place
…Don’t want to jeopardise settlement proceedings.
·Nothing said to solicitors.
Can get leave
Don’t want advice at this stage
Just flagging it.
Not put to Commission.
Want to speak to us first.
The contents of that file note were the subject of comment by Ryan J in his decision at [47]. His Honour interpreted the contents to amount to an opinion being expressed by Mr Williams that the ASOF would not be admissible beyond the civil proceedings and Mr Davidson had speculated that leave of the Federal Court would be needed in order to use the ASOF in the criminal proceedings.
It was contended that the Respondents, being aware of that file note (which the Applicant also alleged was improperly concealed) and consequently being aware of the need to obtain leave of the Court to use the ASOF, had committed a breach of the implied or express undertakings. In support for that proposition, the Applicant relied on the evidence given by Mr Davidson in the criminal proceedings that the file note was not placed by him on the file but was put in a clear plastic envelope and stored in a safe.
The Applicant contended that it was extremely important to the ACCC that Mr Davidson’s file note remained concealed from the defence in the criminal prosecution because it was regarded as vital in bringing criminal proceedings against Mr Pratt. To support this contention, it was submitted a) the ACCC was not prepared to resolve the civil proceedings unless Mr Pratt made an admission of his knowledge of the cartel; and b) the ACCC knew that such an admission would expose Mr Pratt to criminal liability, having regard to his evidence in the s 155 examination. It was also contended that the Respondents did not notify Mr Pratt or his legal advisers or Mr McHugh, who was the mediator in the civil proceedings, that criminal proceedings were being contemplated.
Accordingly, Mr Davidson’s file note, having been improperly concealed prohibits the Respondents relying on LPP over any other communication which flows from or touches it.
In relation to application 2010/1053, it was contended that any legal advice of Mr Dean and Dr Donaghue relating to the use of the ASOF and any derivative information would be a furtherance of an improper purpose and of itself amounted to a contempt of the Court. Accordingly, if Mr Dean and Dr Donaghue had regard to the ASOF in the advice that they gave, LPP cannot attach to their written communications. Further to this contention, the briefing of the CDPP by the ACCC with documents which included the ASOF indicated that it would be used outside the civil proceeding was an improper purpose. Privilege over the Advices of Counsel and other documents delivered to the CDPP cannot, in those circumstances, be exempt under s42.
In relation to application 2010/1265, the Applicant submitted that the CDPP had waived privilege in relation to the emails found at documents 4 and 61 in the Schedule of Documents. It was contended that those emails disclosed that counsel had advised about the ASOF, LPP and a file note of a conversation between Mr Samuel and Mr Williams. However, access was refused to other documents which were derived from or associated with the released documents. It followed, on this submission, that the CDPP had waived privilege over the documents associated with documents 4 and 61.
It was submitted that there were reasonable grounds to believe that a decision had been made to use the ASOF, Mr Williams’ file note and all derivative information flowing from both documents. It would follow, if such a conclusion was reached, that there had been a breach of implied or express undertakings not to use those documents and LPP, as a basis for a denial of release of the documents, could not be sustained.
The CDPP replied to the Applicant’s contentions in a Statement of Facts and Contentions lodged on 15 October 2010. At that point in time, the ACCC had not been joined as a party to these applications and an amendment to the Applicant’s case invoking public interest displacement (refer later) had not been made.
Having decided that its interests were affected by the decisions under review, the ACCC was joined as a party to these proceedings pursuant to s 30(1A) if the Administrative Appeals Tribunal Act 1975 (the AAT Act). The submissions of the Respondents’ in reply were divided into five key propositions (paragraph 2) and a number of answers (commencing at paragraph 3) to the Applicant’s contentions.
The first of the key propositions of the Respondents concerned the Applicant’s contention that the ASOF in the civil proceedings was subject to the Harmon implied undertaking.
The Respondents contended that if there is an undertaking, it does not apply to a document which was voluntarily and jointly produced by both parties in the civil proceedings. Further, an undertaking, if any, ended after it was identified and published in the reasons for decision of Heerey J.
The second key proposition of the Respondents concerned an express undertaking, as alleged by the Applicant, where it was contended that the ASOF would not be used outside the civil proceedings.
The Respondents contended that paragraph 378 of the ASOF a) does not constitute nor does it contain any undertaking and b) it is not implicit that it would not be used outside the civil proceedings. The Respondents points to the language at paragraph 378 itself, which it says was intended to satisfy s 191(3)(a) of the Evidence Act 1995 (as opposed to it being in the nature of an undertaking).
Section 191 of the Evidence Act 1995 is reproduced as follows:
(1)       In this section:
agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.
(2)       In a proceeding:
(a)       evidence is not required to prove the existence of an agreed fact; and
(b)       evidence may not be adduced to contradict or qualify an agreed fact;
unless the court gives leave.
(3)       Subsection (2) does not apply unless the agreed fact:
(a)is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding; or
(b)with the leave of the court, is stated by a party before the court with the agreement of all other parties.
Additionally, the language of paragraph 378 points to an acknowledgement by all the parties in the civil proceedings that there is a limitation on the legal effect of the ASOF. It is also acknowledged, by the ASOF, that paragraph 378 was no more than an admission for the purposes of those proceedings only (s 191(3)(a)). In those circumstances, there was no undertaking restraining the use of the ASOF. Whilst Ryan J found that the ASOF did not amount to representations as an exception to the hearsay rule and therefore could not be adduced in the criminal proceedings, he did decide there was nothing precluding use of the ASOF in cross-examination and it having some probative value. In effect therefore, the decision of Ryan J does not point to any breach of undertaking by seeking to rely on the ASOF.
Additionally, or in the alternative, if paragraph 378 did constitute an implied or express undertaking, Order 15, Rule 18 of the Federal Court Rules (then existing) would bring those undertakings to an end.
The third key proposition understood by the Respondents to emerge from the Applicant’s contentions, was the ASOF had remained subject to the Harmon implied undertaking until it was referred to in the prosecution case statement and the brief of evidence in the criminal proceedings.
The Respondents relied on Order 15, Rule 18 of the Federal Court Rules then in force, and contended that Rule 18 abrogated the principle understood in Harmon. The Rule provides:
Any order or undertaking, whether express or implied, not to use a document for any purpose other than those of the proceedings in which it is disclosed shall cease to apply to such a document after it has been read to or by the Court or referred to, in open Court, in such terms as to disclose its contents unless the Court otherwise orders on the application of a party, or of a person to whom the document belongs.
The Respondents contended that it was uncontroversial that the ASOF was tendered or produced by all parties in the civil proceedings; it was referred to in submissions in open Court which substantially disclosed its contents; it was read by Heerey J; it was referred to at length and in detail by Heerey J in his reasons; there was no Order of the Court to preserve any undertaking and no party applied for such an Order.
The Respondents contended, on the basis of Australian (State and Federal) authorities that any implied undertaking over a document shall come to an end after the document has been received into evidence and without any Order restraining its use. Additionally, it was contended that Order 15, Rule 18 had the effect of bringing any undertaking to an end, especially having regard to the circumstances described above and by regard to Mr Pratt having publicly commented about the subject of the ASOF before it was received into evidence. On that basis, if there was any agreement between the parties limiting the use and disclosure of the ASOF, it had been repudiated by Mr Pratt.
The fourth key proposition of the Applicant as understood by the Respondents was use of the ASOF by the ACCC or the CDPP in the criminal proceedings breached the Harmon implied undertaking or the express undertaking, and consequently amounted to contempt of the Court. Additionally, use of the ASOF, constituted the improper purpose or an illegal object as the Applicant contended.
The Respondents contended that an improper purpose or illegal object must be pleaded in definite or clear terms; there must be evidence of impropriety or illegality and there must be a factual foundation.
The Respondents contended that the word use in its many references by the Applicant was vague and imprecise. The Respondents contended that the reference to the ASOF in the Prosecution Case Statement and its inclusion in the brief of evidence had the effect of putting the defence on notice in the criminal prosecution of the evidence the CDPP would seek to adduce. In those circumstances, putting Mr Pratt on notice was not a breach of an undertaking. Additionally, the ACCC providing its solicitors, the CDPP with the ASOF did not constitute a breach of an undertaking. There was no use of the ASOF but rather it formed part of a body of documents over which the ACCC, as the client, sought advice from its solicitors, the CDPP.
The Respondents noted that at no time did Mr Pratt, despite asserting that there was an implied undertaking, seek to restrain the use of the ASOF or its inclusion in the prosecution material. It therefore follows that any documents in issue in these proceedings which derived from the ASOF are not subject to the assertions made by the Applicant of waiver of LPP.
The fifth key proposition as understood by the Respondents was the communications recorded in the documents in issue were made to breach the Harmon implied undertaking or the express undertaking which constituted am improper purpose or an illegal object.
The Respondents denied the above propositions which were understood to advance the Applicant’s case to support displacing LPP in relation to all of the documents in issue in both of these applications. The Respondent contended there was no evidence to support any improper purpose or illegal object.
It was contended that the propositions advanced by the Applicant are sweeping, they do not demonstrate any connection between any improper purpose or illegal object in relation to the communications and there is no evidence that any of the documents in issue record any communications that had the purpose of breaching or evading the alleged Harmon implied undertaking.
Specifically, it was contended that Mr Davidson’s file note was not concealed and there is no basis for any contention that any communication had the purpose of concealing Mr Davidson’s file note.
The Respondents contended that the Applicant selectively reproduced part of the evidence of Mr Davidson before Ryan J. The Respondent pointed to part of the transcript of 16 December 2008 at page 510, where Mr Davidson admitted that the file note was placed in a safe because he did not open a file at that stage, he had been asked to keep the issue contained within the document confidential – as opposed to the document itself – and he had taken steps to protect the document by placing it in a clear plastic envelope in the office safe.
In relation to the Applicant’s contention that there are reasonable grounds for a belief that the ASOF was handed over by the ACCC to the CDPP at the time of briefing, it was contended that LPP exists over the contents of all of the documents that were briefed. The transcript of 12 December 2008 at page 299 records that the ACCC objected to cross-examination on that issue and Ryan J upheld the objection. The Respondents did not waive LPP over those documents.
In any event, even if it were conceded – which it was not – that the ASOF was included in the brief to the CDPP, there would not have been any breach of an implied or express undertaking. The ACCC, as the client, was entitled to seek advice from its lawyers, the CDPP and there is no evidence that any advice or any communication was given, made or received for the purpose of any breach or evasion of any undertaking.
It was submitted that a breach of the Harmon implied undertaking would not amount to an improper purpose or illegal object. It was also noted that the Applicant did not submit any authority for that proposition and the representatives of Mr Pratt did not make any submission in the criminal prosecution that use of the ASOF constituted an improper purpose or an illegal object. If it had, the ACCC and/or the CDPP could have made application to be released from any alleged undertaking. In these circumstances, it follows that there was no improper purpose or illegal object and the Applicant’s assertion that LPP should be displaced has no merit.
Additionally, the assertions of the Applicant that the use of the ASOF by the ACCC and the CDPP amounted to contempt of the Federal Court had no validity. No such application was made by Mr Pratt during the criminal prosecution and this Tribunal has no power to make such a finding. Indeed to make such a finding would interfere with the Federal Court’s jurisdiction.
In concluding this issue, it was noted that there was no evidence in these proceedings that any document in issue recording any communication, was made with the purpose or the intention of either facilitating a breach of the implied or express undertakings or evading any obligation to honour those undertakings.
The Respondents referred to the Applicant’s contention of an entitlement to documents derived from documents 4 and 61 in application 2010/1265. It was noted that those documents were released to the Applicant in proceedings which had concluded (2010/688) and the document principally asserted as having derived was the Advice of Counsel of 19 September 2008 (document 5 – it is also document 11 in the Schedule of Documents in application 2010/1053).
The Respondents understood the Applicant asserted that privilege over documents which were derived from the Advice had been waived. It followed, as the Respondents understood the contention, that privilege over the advice should also be waived.
Whilst the ACCC acknowledges that the contents of documents 4 and 61 will, by inference, indicate that the Advice of Counsel was concerned with whether Mr Davidson’s file note was subject to LPP, those documents (4 and 61) do not directly and clearly set out the substance of the advice on that point and no basis exists to conclude that it may be inferred that the Memorandum of Advice was concerned only with the issue of Mr Davidson’s file note. That is to say, the Memorandum of Advice may have addressed other issues.
In the alternative, if the Advice of Counsel did conclude that Mr Davidson’s file note was subject to LPP, the remainder of the advice which may have dealt with other issues would be severable and there would be no basis to waive LPP over the remainder.
PUBLIC INTEREST DISPLACEMENT OF LEGAL PROFESSIONAL PRIVILEGE
At the beginning of the second day of hearing, the Applicant applied to amend his application to plead an additional basis for release of documents, namely, the conduct of the ACCC justified invoking public interest to displace LPP. It was contended that the ACCC had:
…either been bound by an undertaking, express or implied, or the terms of an agreement not to use an agreed statement of facts for any purpose and has done so (Transcript page 51).
Mr Hanks on behalf of the Respondents submitted that his clients were facing a new case and sought directions that the Applicant lodge a new pleading which put his clients on notice of those matters which constituted the agreement. It was foreshadowed that when that pleading was lodged, instructions would be sought and it was likely that Mr Alexander would be called to give evidence on this issue (Transcript page 52).
I adjourned to permit the representatives to reach agreement on the form of the Directions for the lodging of documents by both parties in relation to the new contentions.
When the matter resumed on that day, the Applicant had left the Tribunal premises and his colleague, Ms Kee, appeared on his behalf. It was obvious that an agreement had not been reached between the parties concerning the terms of the Direction and I sought clarification – from Ms Kee – of what was the agreement from which there was an alleged breach of an express or implied undertaking.

There are three emails found at document 51. Two of them – 12 September 2008 at 12.15pm and 15 September 2008 at 6.01pm were the same emails found at document 3 earlier and at document 14 in application 2010/1053. The additional email at document 51 is dated 15 September 2008 at 6.23pm from Dr Donaghue and addressed to Ms Thompson, Mr Dean and Mr Kirne. The dominant purpose of it was giving advice concerning the contents of the other two emails. He also expressed a legal opinion. He did so in his capacity as counsel engaged by the ACCC in relation to the criminal prosecution. That email is exempt under s 42 as are the other two found at document 51 (as previously decided).
Document 52
Three emails make up this document dated 13, 14 and 15 October 2008 initiated by an email from Ms Thompson to Mr Alexander, his reply and a reply from Ms Thompson. Each email refers to issues relevant to the criminal proceedings, discussion concerning some draft documents and counsel’s advice in relation to some documents. The emails were exchanged between solicitor and client and had the purpose respectively of seeking instructions and advising and subsequently acting on those instructions. The three emails at document 52 are exempt pursuant to s 42.
Document 53
A number of documents constitute this part. One is from Mr Evagorou dated 8 October 2008 with an attached email from Mr Williams dated 7 October 2007. Another document is an email from Ms Thompson dated 13 October 2008, addressed to counsel attaching the statement of Mr Davidson (which is discussed earlier at document 31A, 32 and 44). For reasons found earlier, that statement in its form as an attachment to document 32 is not exempt. Each email concerns the typed notes of Mr Williams discussed at document 31A and 79. The typed notes also appear to have originated from the email of Mr Williams of 7 October 2008. The emails also refer to legal issues connected with the prosecution and discussions with counsel and another ACCC officer.
The typed notes attached to the emails have been the subject of findings earlier, from which I do not resile. The contents of the emails constitute confidential communications between the solicitor and the client of matters associated with the typed notes and the prosecution. They are exempt from release pursuant to s 42.
Document 54
There are three emails which make up document 54. All are dated 3 October 2008 and involve correspondence between Mr Thompson and Mr Dean. The communications relate to preparation and exchange of certain documents, entirely related to the criminal prosecution. The contents of the email of Mr Dean have the character of professional legal advice consistent with him having been engaged as counsel on behalf of the ACCC. The three emails at document 54 are exempt pursuant to s 42.
Documents 55, 56, 57 and 58
The above documents comprise a number of emails between 23 and 29 September 2008 sent by Ms Thompson, Mr Alexander and Mr Dean concerning a number of documents intended to be lodged and exchanged in the prosecution proceedings (including references to the contents of those documents); disclosure obligations and instructions and advice in relation to the documents. Communication was also concerned with meeting a Court ordered timetable.
At document 58 there is also a photocopy of a handwritten memorandum completed by Ms Thompson of a conversation she had on 24 September with Mr Alexander. The subject of that conversation, so far as can be discerned from the notes, is discussed in her email of 25 September (document 56) addressed to both counsel. Despite imperfections in the photocopied document lodged it would appear that the discussions also concerned the documents intended to be lodged at the Court and instructions sought and obtained from Mr Alexander. Document 57 consists of two emails from an officer of the ACCC to Ms Thompson giving her instructions in relation to some documents. Document 55 comprises two emails between Ms Thompson and Mr Dean concerning release of documents. The entire contents of the documents found between documents 55 and 58 may be described as confidential communications between officers of the lawyers and the client for the purposes of the litigation. The documents are exempt pursuant to s 42.
Documents 59 and 60
Each of these documents contain common emails for which exemption has been waived (refer discussion earlier concerning documents number 4 and 61) which were generated between 23 and 24 September 2008. Privilege has been waived over most of them except for the attachment to the email of Ms Thompson of 23 September 2008 at 12.54pm, it being the advice of counsel dated 19 September 2008. That document has been the subject of a finding (and reasons) earlier (document 11 in 2010/1053) that it is subject to LPP.
The remainder of the emails within documents 59 and 60 over which privilege is not waived are an email from Ms Thompson to Mr Taggart and Mr Davidson of 24 September 2008 at 10.10am, an email from Mr Taggart on 23 September 2008 at 6.18pm and an email from Mr Davidson to Mr Taggart and Ms Thompson (with copies to Mr Kirne and Mr Pedley) on 23 September at 3.07pm. Release of those three emails is opposed and I agree that they are exempt for the purposes of s 42. These emails refer to certain advice and recommendations with respect to a number of documents. The emails also communicate certain instructions that were given by an officer of the client to the lawyer. Those communications occurred in the context of the litigation, which had commenced and are privileged and exempt.
Document 62
Document 62 comprises three emails. The first is dated 10 October 2008 from Mr Davidson to Ms Thompson, Mr Kirne and Mr Taggart attaching his Draft Statement. That email is identical to the email found at document 32 earlier. I confirmed earlier that Mr Pedley had recorded at paragraph 34 of his Affidavit that exemption was no longer sought with respect to document 32. That email has the draft statement as an attachment. A discussion between Mr Hanks and myself during the hearing (refer Transcript page 56 and 57) satisfies me that the waiver of privilege to document 32 also comprises the attachment.
The other two emails are dated 13 October 2008 and 8 December 2008. Both were sent by Ms Thompson to counsel and Mr Evagorou. Each email has the statement of Mr Davidson attached and the typed notes of Mr Williams (refer discussions at documents 31A, 32, 44 and 79).
The second sentence of the email from Ms Thompson of 13 October is irrelevant and exempt under s 22 of the FOI Act. The remainder of the email of 8 December refers only to the statement of Mr Davidson and the typed notes. The Applicant is entitled to the statement in its form found at document 32. He is not entitled to the version of it with handwritten annotations found elsewhere. He is also not entitled to the typed notes for the reasons recorded against document 31A and 79 earlier.
Document 63
This document comprises an email 6 October 2008 from Mr Evagorou to Ms Thompson and officers of the ACCC, with some attachments. One attachment is a list of the documents produced to the Federal Court under a subpoena on 3 October 2008. The other is the handwritten file note of Mr Davidson of 11 October 2007. The other attachments comprise 2 emails between Ms Thompson and Mr Taggart on 16 and 17 June 2008 concerning the content of the Information and final discussions between senior officers of the ACCC (I understand the Information to be the Form 52 Information for an Offence filed with the Federal Court on 19 June 2008 plaint 443/2008 – refer Annexure MP7 to Affidavit of Mr Pedley).
The remainder of the email of Mr Evagorou discusses the compilation of a list of documents, in compliance with Orders made by Gordon J on 29 September 2008. He makes enquiry and seeks instructions. Except for the list of documents lodged on 3 October 2008 (a copy of which must have been delivered to the Applicant when it was lodged with the Court three days previously) and Mr Williams’ file note of 11 October 2007 (which was released to the Applicant on 9 October 2008) I regard the remainder of the email and the attached emails of 16 and 17 June as exempt from release.
The remainder of Mr Evagorou’s email contains confidential communications from the solicitors engaged by the CDPP and officers of the CDPP and the ACCC in relation to the existence and release of documents that may be held by the ACCC for the purposes of complying with Orders made on 29 September 2008. It attracts LPP under s 42.
The 2 emails of 16 and 17 June 2008 contain material which is, without doubt highly confidential to the legal advisers and the client. The email of 17 June also refers to a meeting between senior officers of the ACCC in relation to the information. The emails attract LPP.
The Information, described as Information doc. was an attachment to the email of Ms Thompson. It did not form part of document 63.
Document 64
Two emails exist at this document, both dated 2 October 2008, initiated by an email from Ms Thompson to Mr Williams and the second email being his reply. Ms Thompson has made a request of Mr Williams and his reply gives his consent. The request made of him and the consent given is in relation to a matter which emerged between the lawyer and the client after the litigation commenced. The issue and the communication between Ms Thompson and Mr Williams is entirely related to that issue and is protected from release pursuant to s 42.
Document 65
This document comprises three emails, two of which are found at document 29 earlier and over which I have given reasons.
An email of 2 October 2008 at 12.23pm from Ms Thompson to Mr Davidson is the third email. It is a response to the email of Mr Davidson of 2 October 2008 at 12.22pm. The two earlier emails are privileged for the reasons recorded earlier. The response from Ms Thompson at 12.23pm is also privileged for the same reason. It identifies a particular document and the proposed author, which in the circumstances would be confidential to both the lawyer and the client.
Document 66
This is a handwritten memorandum, completed by Ms Thompson, arising out of a conference she attended with Ms Judd SC and Mr Attiwill on 2 October 2008. The photocopy is of poor quality but so far as I can discern, the discussions concerned a number of matters relevant to the litigation and clarified a number of issues that were raised by counsel. Both counsel would have been consulted in their professional capacity as persons briefed by the CDPP on behalf of the ACCC. The communications arising out of those discussions, as can be discerned from the notes, clearly emerged as a result of the lawyer/client relationship. The memorandum therefore is exempt pursuant to s 42.
Document 67
There are two documents at this part, each having been produced by the AGS on 30 September 2008 and entitled Commonwealth Director of Public Prosecutions Subpoenaed Documents. They are a list of documents, located by the CDPP in response to a subpoena. One document should be regarded as being a draft because there are a number of handwritten annotations to it. The other document is marked as Draft 2 and appears to incorporate the notations from the first draft. Both documents in my view can be regarded as internal working documents, consistent with the opinion of Mr Pedley at paragraph 52 of his Affidavit. Both documents obviously relate to the criminal proceedings. Neither document should be released to the Applicant. One document contains a number of handwritten annotations. The other is marked as Draft 2. It appears to have incorporated the changes from the other document, which I assume was, although not marked, as the first draft. The second document also has a handwritten note on the first page – As at conf. on 2.10.08. That would appear to be the same conference referred to in the memorandum of Ms Thompson at document 66 above. Further weight therefore attaches to it as being an internal working document. It is for those reasons I am satisfied the document is exempt pursuant to s 42.
Document 68
This document comprises an email of 1 October 2008 from Mr Evagorou to Ms Thompson, counsel and other officers of AGS apparently following a conference. Attached to the email is a second draft of the subpoenaed document list discussed above under document 67. It is in a different form but obviously remains as a draft because it contains a number of track changes. The remainder of the email from Mr Evagorou seeks clarification of a number of issues and advice, obviously intended to permit the document to be completed. The email and the attached document, for reasons given immediately above are both exempt pursuant to s 42.
Document 69
One email only is found at document 69 having been sent by Ms Thompson to Mr Evagorou. In it she refers to a number of documents which she was about to deliver to his office and makes a number of comments that she asked be brought to the attention of counsel. She also recorded the attitude of the CDPP and the ACCC to some of the documents.
I am satisfied that the email is privileged because it records legal opinion and the attitude generally of both the ACCC and the CDPP to a number of the documents and the contents of those documents. The email was obviously produced by Ms Thompson in her capacity as solicitor engaged by the CDPP, (who engaged the AGS). The ACCC was the client of the CDPP. Those legal relationships then existed because of the litigation which had commenced. The email in the circumstances is exempt pursuant to s 42.
Document 70
The only document at this part is a single handwritten note of Ms Thompson of a conversation with Mr Taggart on 30 September 2008. The note refers to an extension of time application before the Federal Court on 30 September 2008 and to the attitude to the ACCC, being the client, in relation to a particular document. That discussion clearly occurred between senior officers of both the lawyer and the client and is privileged. It is exempt pursuant to s 42.
Document 71
This document comprises five emails. Two were sent by the Applicant to officers of the Respondent on 26 October 2008. One email from Ms Thompson and the other two emails by counsel were all sent on 27 October 2008. Objection to release concerns only the emails of 27 October.
The issue in all five emails concerned corruption of ACCC data. This issue was initially raised by the Applicant in his two emails. The succeeding three emails concerned that issue in discussion, within the emails, between Ms Thompson and counsel. The issues that emerged from the discussions were confidential to the representatives in the context of the litigation and their obligations to release documents. These three emails are exempt from release.
Document 72
This document comprises a chronology of events prepared by Arnold Bloch Leibler of 24 October 2008 comprising 22 pages. It appears to be a summary of relevant events as perceived by the authors, commencing on 16 April 2001 and concluding on 22 October 2008. I assume it was prepared for use in the criminal proceedings.
A copy of the document has some handwritten notes within it. Mr Pedley attested (paragraph 74) the notes were made by Ms Thompson. The notes record some comments in relation to some of the events, as summarised. It would appear that they were made for use in the prosecution. The notes are a confidential communication in the context of litigation. The document, in its present form, is exempt from release pursuant to s 42.
Document 75
This comprises an email of 21 October 2008 from Ms Thompson to Mr Alexander. A copy of it was also forwarded to Mr Williams. The content of it refers to a number of documents that were produced and subject to the scrutiny of counsel. Additionally, the email refers to certain work which was being conducted in relation to the prosecution.
The communication was from the lawyer to the client in relation to the prosecution which had commenced. It sought instructions in relation to some draft documents. It referred also to some documents discussed elsewhere in these reasons which I have found to be exempt. The document attracts LPP under s 42 and is exempt.
Document 76
This document comprises a handwritten note of a telephone discussion between Ms Thompson and Mr Alexander on 21 October 2008. It concerned an issue referred to in the email at document 75 above. The notes refer to a matter relevant to the prosecution and the preparation and content of a document also relevant to the prosecution. It is the recording of a communication between senior officers of both the lawyer and the client, it is of a professional nature and is in relation to the prosecution. In my view it is exempt from release pursuant to s 42.
Document 77
This document comprises five emails between 21 October and 22 October 2008 to and from Ms Thompson, Mr Dean and Dr Donaghue concerning communications with and documents prepared by a number of persons in the employ of the ACCC and the CDPP and who were associated with the prosecution; documents that had been or were in the process of being prepared and other matters of a legal nature for which the obtaining of legal advice was foreshadowed. The communications commenced after Ms Thompson received an (undated) letter from the Applicant.
The communications in my view, were clearly referrable to the litigation, they were conducted between counsel who had been briefed and the lawyer engaged by the client. The documents, in my view, are exempt pursuant to s 42.
Document 78
This document comprises a draft of a two paged letter from Ms Thompson to Mr Zwier. It contains matters of a legal nature for which Ms Thompson sought advice from counsel before it was sent. Having regard to the particular legal issue contained within this draft correspondence and the advice pending from counsel concerning that matter, it should be regarded as a document confidential to the lawyer and the client containing a matter over which advice was sought. It cannot be regarded as a concluded document and in its present form, it would not have been sent to the Applicant. It should be regarded as exempt pursuant to s 42.
Document 81
This document is described as a List of Emails. It comprises 13 pages. It appears to be a schedule of the emails received in a recipient’s inbox. The foot of each page bears a date and a time which I assume was the occasion of the printing of the document. Ms Thompson’s name appears at the bottom of each page. I do not know whether she printed the document. I will assume it is a printout of the contents of her email in-box
It is obvious from the document that it records the identity of persons who forwarded emails over a period of time and the subject of the email, the date that the document was received in the inbox and the size of the document. Almost every email throughout the 13 pages identifies the email as either concerning Mr Pratt or other descriptions clearly referrable to the prosecution. Against many of the entries throughout the 13 pages are handwritten annotations.
The document identifies a number of persons who were intimately involved in the prosecution of Mr Pratt, being counsel and officers within the employ of the ACCC and the CDPP. Mr Pedley records at paragraph 67 of his Affidavit that he was informed by Ms Thompson that she prepared the 13 page list in response to obligations of the CDPP in relation to the prosecution and for the purposes of communicating with the AGS. For those reasons and having regard to the subject matter of the emails (over which reasonable inferences can be drawn) and the annotations, I would regard the 13 page list as being both a working document and a confidential communication which, on the Affidavit of Mr Pedley, was prepared by Ms Thompson in response to a legal obligation and in order to permit her to communicate properly with the AGS. It is a document that I would regard as exempt pursuant to s 42.
Document 82

This document comprises five emails between Mr Alexander, Ms Thompson and Mr Evagorou. The contents relate to two documents which had been located, and which, as indicated by one of the emails, had been disclosed to Mr Pratt or his lawyers. The communications between the authors of the emails comprising this document were of a professional and confidential nature solely concerned with the litigation and their respective relationships as solicitor and client. The documents are exempt pursuant to s 42.
Document 84
This document is an email of 9 December 2008 between Ms Thompson and Mr Williams. It concerned matters relevant to the prosecution and an issue in relation to the proposed evidence of Mr Williams. It is clearly a confidential communication arising entirely out of the relationship between solicitor and client in relation to the litigation. It is exempt pursuant to s 42.
Document 85
This comprises one email only between Mr Kirne and Ms Thompson. It refers to an issue within a document which, by its description, was confidential to the ACCC and the CDPP. It was a document that was created for the purposes only of the prosecution and must be regarded as a communication arising out of the relationship between client and lawyer and is confidential in nature. It attracts exemption under s42.
Documents 92 and 93
Each document is a summary, in note form, of the evidence given by Mr Williams. Document 92 is the evidence of Mr Williams of 10 and 11 December 2008. Document 93 is the evidence given by him on 10, 11 and 12 December 2008. Document 93 incorporates the same notes found within document 92. Paragraph 84 of the Affidavit of Mr Pedley records that he was informed by Ms Thompson that the notes were prepared by Dr Donaghue for the purpose of advising the CDPP.
Whilst the evidence of Mr Williams’ can clearly be accessed from the Transcript, the notes made by Dr Donaghue are in a very different form and they contain his own abbreviations, comments and emphasis. It was a document over which Dr Donaghue was obliged, having been briefed by the CDPP (who were instructed by the ACCC), to give advice and undertake other like work. The document in the circumstances must be regarded as a confidential communication. The document is exempt pursuant to s 42.
Document 95
This document comprises 93 pages and is entitled Document Produced Pursuant to Subpoena – Working Chronology. It was prepared by Ms Judd SC, and a number of other persons. The document is qualified by a notation that it has been prepared for the purpose of advising the ACCC. It is covered by LPP and may not be used for any purpose by any person without the privilege being waived.
The document is clearly a list of every document made available to Ms Judd and her colleagues and prepared in order for the CDPP and/or the ACCC to respond to a subpoena to produce documents. Each document has a description of its content. This summary would have been a convenient basis to identify and determine which documents existed and over which a decision could be made to either disclose or claim privilege. It is in the form of working notes and was not, as is also obvious by the qualification on the first page, not intended for release. It was a communication prepared exclusively on the instructions of the CDPP for the benefit of the ACCC as the client. It is a professional, confidential communication, also in the form of a working document and should be regarded as exempt pursuant to s 42.
Document 96
Document 96 is an Affidavit sworn by Mr Alexander on 27 November 2008. The Tribunal was provided with a redacted copy of it, disclosing only the part to which the CDPP does not object to release, namely paragraph 46. The reason for objection to releasing the Affidavit in whole or greater part was recorded in the Schedule of Documents appended to the Affidavit of Mr Pedley as irrelevance pursuant to s 22.
I called for the entire document and eleven appended exhibits. Consideration of the basis for objection was impossible without access to the whole of the document. The Tribunal was later provided with a copy of the Affidavit without deletions (22 pages) and the exhibits (286 pages).
In an email letter of 19 December 2011 from AGS, the Tribunal was advised that the Affidavit was prepared in relation to subpoenas issued against officers of the ACCC in the prosecution proceedings. At the time the Applicant made his FOI request, the CDPP only had the Affidavit in its possession, not the exhibits. Accordingly it disclosed the Affidavit only as a document of an agency within the meaning of s 11. However, the ACCC, which apparently had possession of the exhibits, was made a party to this application, by Order, on 14 February 2011. Thereafter, I think it is an agency, within the meaning of s 11 for the purposes of this review (although it was not an agency prior to or at the time of the reviewable decision). I do not accept that the exhibited documents do not form part of the Affidavit, as the letter of 19 December contends.
The letter of 19 December confirms the whole of the Affidavit and all the exhibits were provided to the solicitors for Mr Pratt. The Applicant is a member of that firm. Nonetheless, objection is maintained for release of the Affidavit, except for paragraph 46, and all of the exhibits, on the basis of irrelevance pursuant to s 22.
Mr Kee, a solicitor in the office of the Applicant received copies, also by email, of the correspondence between the Tribunal and AGS. No issue was raised by her during the exchange of these letters.
The request for documents in this application concerns communications between Mr Davidson and Mr Williams on 11 October 2007 and all other documents and communications connected with it.
I have read the Affidavit and the exhibits. I am satisfied only paragraph 46 of the Affidavit is relevant to the documents requested. The only exhibit of relevance to the request is Exhibit 11, it being the St Kilda file note. The Applicant is entitled to that document. It has been previously released.
For practical purposes, little turns on document 96. The Applicant has the whole of the Affidavit and all the exhibits. I note some of them are marked as redacted, in whole or part, as not falling within the ambit of the summons issued in the prosecution application. I have not been given the exhibits in unredacted form. I cannot determine whether any of the redacted parts would be relevant to the request in this application. I do not know whether there was argument (and if so, the outcome) in the Federal Court to release those redacted documents to the Applicant – as the representative of Mr Pratt.
Document 97
This is another list of documents, prepared by Ms Judd and entitled Index of Documents Produced Under Subpoena. A footnote to the document records it was Derived from Master Chronology prepared by counsel briefed by AGS (which I will assume was the list of documents found at document 95 earlier). It resembles that list because it records the same documents, but it has many alterations and track changes. I have assumed that the list at document 97 was prepared after the list at document 95 because some documents on the former list have a strike through type on the latter list. Each of documents are described in the Affidavit of Mr Pedley as a draft working copy (refer Affidavit at paragraphs 78 and 88).
This document must be regarded as a draft working paper and which also contains a number of notes for the benefit of interpretation and advice to both ACCC and the CDPP. It is a confidential communication intending to reflect instructions that had been given either by the CDPP or the ACCC. It is a communication which must be regarded as confidential and is exempt pursuant to s 42.
Document 99
This is a three page document completed by the solicitors for Mr Pratt dated 31 October 2008 entitled Statement of the questions or issues that the defendant contends should be determined separately to any other question or issue pursuant to Order 29 of the Federal Court Rules. There are a number of handwritten annotations, queries and comments recorded on pages 1 and 3.
Paragraph 77 of the Affidavit of Mr Pedley identifies the annotations as having been made by counsel retained by the CDPP on the instructions of the ACCC. The annotations must be regarded as notes or thoughts or comments made by counsel for the purposes of the prosecution and/or the giving of advice to the client. The annotations on pages 1 and 3 must be regarded as professional and confidential communications which exempts those pages from release pursuant to s 42. However, there are no annotations made on page 2 of the document and it could not be the subject of s 42 or any other prohibition against release. However, it is a document which has been prepared by the defendant’s solicitors and no doubt it retains a copy of it.
DECISION
For the reasons given earlier, the decisions of the Respondents in each application opposing the applications to either waive or displace LPP are affirmed.
Having inspected the documents identified by each schedule, I am satisfied, save for the documents recorded below, that all are exempt from production in these proceedings on the ground of LPP pursuant to s 42 or irrelevance pursuant to s 22.
The decisions under review in applications 2010/1252 and 2010/1053 are affirmed.
The following documents in application 2010/1265 are not privileged from production on the basis of LPP and the Applicant is entitled to have a copy of:
(i)the email of Ms Thompson of 10 October 2008 and the attachment to it comprising document 32;
(ii)the list of documents dated 3 October 2008 attached to the email of 6 October 2008 found at document 63; and
(iii)page 2 of the document found at document 99.
In all other respects, the decision in 2010/1265 is affirmed.

I certify that the preceding three hundred and seventy-four (374) paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member.

........................[sgd]...............................
Associate
Dated: 1 February 2012

Date/s of hearing
3-4 November 2010 and 18 April 2011

Date of final submissions
20 May 2011

Counsel for the Applicant
Mr N. Clelland, SC

Advocate for the Applicant
Mr L. Zwier and Ms S. Kee

Solicitor for the Applicant
Arnold Bloch Leibler

Counsel for the Respondents
Mr P. Hanks, QC
Mr P. Gray

Advocate for the Respondents
Ms S. Miller

Solicitor for the Respondents Australian Government Solicitor

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/1053 2010/1265
Re	LEON ZWIER
APPLICANT
And	COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
And	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
JOINED PARTY

File Number(s)	2010/1252
Re	LEON ZWIER
APPLICANT
And	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
RESPONDENT

Tribunal	Mr John Handley, Senior Member
Date	1 February 2012
Place	Melbourne

Doc No	Date	Author	Addressee	Pages	Description	Exemption Claimed
4	14.01.05	Bob Alexander, ACCC	N/A	4	Handwritten notes of Mr Alexander of interview with witness (Mr Jones) on 14 January 2005	s 42 – entire document
6	31.01.05	Garry Franklin, ACCC	Bob Alexander, ACCC	6	Facsimile dated 31 January 2005 ‘Note for Counsel (being in substance a detailed file note of the meeting with Mr Jones on 14 January 2005)	s 42 – in relation to pages 2-6 (the attachment)

No	Document
1.	Memorandum of Advice dated 15 May 2008
2.	Brief to Counsel dated 8 April 2008
3.	Brief to Counsel dated 15 April 2008
4.	Email from Fiona Thompson of the CDPP to Counsel dated 15 April 2008 with attachment
5.	Further email from Fiona Thompson of the CDPP to Counsel dated 15 April 2008 with attachment
6.	Email from Fiona Thompson of the CDPP to Counsel dated16 April 2008 with attachment
7.	Further email from Fiona Thompson of the CDPP to Counsel dated 16 April 2008
8.	Letter from Fiona Thompson of the CDPP to Counsel dated 30 April 2008 with enclosure
9.	Memorandum of Advice dated 21 July 2008
10.	Email from Shane Kirne of the CDPP to Counsel dated 17 July 2008 with attachment
11.	Memorandum of Advice dated 19 September 2008
12.	Email from Fiona Thompson of the CDPP to Counsel dated 27 August 2008 with attachment
13.	Email from Fiona Thompson of the CDPP to Counsel dated 5 September 2008
14.	Email from Fiona Thompson of the CDPP to Counsel dated 15 September 2008 with attachment
15.	Memorandum of Advice dated 29 October 2008

Date/s of hearing	3-4 November 2010 and 18 April 2011
Date of final submissions	20 May 2011
Counsel for the Applicant	Mr N. Clelland, SC
Advocate for the Applicant	Mr L. Zwier and Ms S. Kee
Solicitor for the Applicant	Arnold Bloch Leibler
Counsel for the Respondents	Mr P. Hanks, QC Mr P. Gray
Advocate for the Respondents	Ms S. Miller
Solicitor for the Respondents	Australian Government Solicitor