OnMarket BookBuilds Pty Ltd and The Treasury (Freedom of information) - [2022] AATA 3993

OnMarket BookBuilds Pty Ltd and The Treasury (Freedom of information) [2022] AATA 3993 (18 November 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2021/9874
2022/4753

Re:OnMarket BookBuilds Pty Ltd
APPLICANT

AndThe Treasury
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:18 November 2022
Place:Sydney

On the four separate interlocutory issues raised at the interlocutory hearing, I find that:
(a)Issue 1 – the Tribunal refuses the applicant’s request to make orders regarding the disclosure of the confidentiality clauses contained within the documents in issue.
(b)Issue 2 – the Tribunal refuses the applicant’s requests to issue summons to give evidence to Dr Catherine Livingstone, Mr Josh Frydenberg, and Mr Isaac Rankin.
(c)Issue 3 – the Tribunal refuses the applicant’s request to exclude the letter of King & Wood Mallesons, dated 15 August 2022, from evidence; and
(d)Issue 4 - the Tribunal makes the following order under s 35 of the Administrative Appeals Tribunal 1975 (Cth) in relation to the matter of 2022/4753:
1. Pursuant to subsection 35(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that publication or other disclosure of paragraphs 4-20 of Tribunal Document 6(a) is restricted to:
(a) the Respondent, their legal advisers and other persons who are directly involved with the preparation and conduct of the Respondent’s case;
(b) Members and staff of the Tribunal, including transcription service providers, performing duties in relation to the proceeding.
2. This order operates until further order of the Tribunal.
3. The parties have liberty to apply.
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The Hon. John Pascoe AC CVO, Deputy President
Catchwords
PRACTICE AND PROCEDURE – request for Tribunal to make Directions to provide material to Applicant - objection to the issue of summons to give evidence – request for the Tribunal to exclude evidence – request that the Tribunal make a confidentiality order – whether the directions are appropriate to make – whether the Applicant would be denied procedural fairness – whether the requested summons would materially assist the Tribunal in determining the issues – whether the evidence in question opinion evidence – whether the confidentiality order is appropriate to make – request for directions refused – request to issue summons refused – evidence excluded from consideration – request for confidentiality order granted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s2A, 35, 40A
Freedom of Information Act 1982 (Cth) s 54WB, 63, 64
Cases
Comcare v Maganga (2008) 101 ALD 68
Jones and Comcare [2019] AATA 5407
Proctor and Commissioner of Taxation (2005) 87 ALD 247
Secretary of the Department of Planning, Industry, and Environment v Blacktown City Council [2021] NSWCA 145
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
18 November 2022
By way of application to this Tribunal, the applicant seeks review of a decision of the Treasury to refuse access to documents under the Freedom of Information Act 1982 (Cth) (‘the FOI Act’).
2021/9874
On 12 May 2021, the applicant made a request to the Treasury under s 15 of the FOI Act for the following:
On 27 Nov 19, the Treasurer and the Minister for Business made a joint press statement: “The Morrison Government has today announced that it has agreed to terms with the four major banks, HSC and Macq. Group to establish the Australian Business Growth Fund.” I request the following under the Freedom of Information Act:
1) the November 2019, Heads of Agreement or Memo of Understanding, or other such documents that sets out the “agreed terms” referred to in the media release. In absence of such document, emails or file notes on which the Government relied to make statement that it had “agreed terms” with the 4 major banks – in November 2019; and
2) the October 2022 final shareholders agreement between the banks and Gov’t (see other media releases).
Please note:
A) the CBA Chairman said at AGM that she expected Govt to release (if not true, will render shareholder approval subject to re-vote as this info will have been misleading);
B) if agreement contains confid provision, must be read in light of exclusions for info in the public domain, or required by law or by request from authority (such as under FOI provisions); and
3) public interest immunity is no longer valid, as agreements are no longer ‘under negotiation and commercial-in-confidence’.
In a decision dated 8 July 2021, the Treasury identified 2 documents falling within the scope of this request – the Australian Business Growth Fund (AGBF) shareholders agreement dated 16 October 2020 and the AGBF summary of key terms dated 24 October 2019. The decision refused access to both documents on the basis that they were fully exempt under ss 45, 47G(1)(a) and 47G(1)(b) of the FOI Act.
On 20 July 2021, the applicant sought internal review of the decision in relation to this request. On 19 August 2021, the internal review decision maker affirmed the original decision and refused access to both documents. In contrast to the original decision, the internal review decision found the documents to be exempt under ss 45, 47(1)(b), 47D and 47E(d) of the FOI Act.
On 15 July 2021, prior to seeking internal review, the applicant requested that the Information Commissioner (IC) review the initial decision, and that the review be expedited.
On 16 September 2021, the applicant advised the Office of the Australian Information Commissioner (OAIC) that he wished to proceed with a review of the Department’s internal review decision, and made a further request that the review be expedited, or otherwise referred to the Tribunal under s 54W(b) of the FOI Act.
On 30 September 2021, the OAIC informed the Treasury that the applicant had sought IC review of the Treasury’s decision of 19 August 2021, and that the review be expedited, or otherwise that the IC exercise her discretion under s 54W(b) of the FOI Act to allow the Tribunal to consider the review application.
On 24 November 2021, a delegate of the IC decided not to undertake an IC review and the applicant subsequently applied to the Tribunal for review of the decision.
2022/4753
On 20 January 2022, the applicant made a request to the Treasury und the FOI Act for the following:
Any correspondence dated between 1 January 2018 ‐ 31 December 2020 from the Australian Government Solicitor or any other legal adviser provided to Treasury that provides advice on the compliance or otherwise of the proposed Australian Business Growth Fund and any ancillary arrangements with the Consumer and Competition Act 2010.
On 21 February 2022, the Treasury made a decision to refuse access to the requested documents under s 42(1) (legal professional privilege) of the FOI Act, while neither confirming nor denying the existence of relevant documents under s 26(2) of the FOI Act.
On 23 February 2022, the applicant applied for IC review of the Treasury’s decision and requested that the OAIC either expedite the IC review application or make a decision under s 54W(b) to decline to undertake a review.
On 23 March 2022, the Treasury made an internal review decision affirming its original decision, following the applicant’s internal review request of 21 February 2022.
On 24 March 2022, the applicant advised the OAIC that they wished to proceed with a review of the Treasury’s internal review decision, and that they continued to seek a s 54W(b) decision by the Commissioner in this matter.
On 13 May 2022, a delegate of the IC decided not to undertake an IC review and the applicant subsequently applied to the Tribunal for review of the decision.
An interlocutory hearing in these matters was held on 30 September 2022 to canvass several preliminary issues that had arisen, and which are discussed further below.
The iSsues
There were four separate issues that were canvassed at the interlocutory hearing:
(a)whether the Tribunal should make an order that the applicant be provided with the totality of the confidentiality clauses that exist within the documents in issue;
(b)whether the objection to the issue of the summons to give evidence to Dr Catherine Livingstone, Mr Josh Frydenberg and Mr Isaac Rankin should be upheld and the request refused;
(c)whether the letter from King & Wood, Mallesons dated 15 August 2022, should be excluded from evidence; and
(d)whether a further confidentiality order should be granted over document T6(a) in the matter 2022/4753.
Consideration
At the hearing, in order to ensure that the various issues were properly addressed, each was dealt with discretely and this format is followed in the decision below.
Issue 1 – Access to documents
The applicant asserted that they require access to particular details contained within the documents in issue – namely, the totality of the confidentiality clauses contained within in the ABGF shareholder agreement – in order to appropriately prepare and present their case in the matter.
The Respondent, at hearing, noted that the parts of the confidentiality clauses which existed within the documents in issue had been released to the applicant, and those that had not been released fell within the exemptions claimed over the documents.
The Tribunal further notes that the applicant has requested the Tribunal make directions that the Respondent confirm or deny if the documents in issue exist. I take note of the letter of 29 July 2022 to the Tribunal from the Respondent’s representative, which stated that while the Respondent would move away from their ‘neither confirm nor deny’ position, they maintained that the any documents falling within the scope of the applicant’s request are exempt pursuant to s 42 of the FOI Act, on the basis that they would be privileged from production in legal proceedings on the ground of legal professional privilege. I note that a schedule of the documents in issue in this proceeding was annexed to the Respondent’s Statement of Facts, Issues and Contentions filed on 16 September 2022. I do not propose to make any further orders in this regard.
It is often the case in an application such as the one currently before the Tribunal that the FOI Act itself restricts the information available to the applicant because that information, if disclosed, would reveal the material which is the subject of the proceedings to be determined by the Tribunal.
The applicant raised the issue of procedural fairness, but as correctly pointed out by the Counsel for the respondent, procedural fairness is not a static proposition but rather situational and depends on the particular circumstances of the matter before the decision-making body.
In particular, the Tribunal must have regard to the context provided by s 63 and 64 of the FOI Act which state as follows:
Section 63 - Tribunal to ensure non-disclosure of certain matters
(1) In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975 , the Tribunal must:
(a)have regard to:
(i)     the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate; and
(ii)    the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1); and
(b)where the proceedings relate to a document that is claimed to be an exempt document under section 33--give particular weight to a submission made by an agency or a Minister that it is desirable to make the order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975 because disclosure of the document:
(i)     would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth; or
(ii)    would divulge information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
(2) Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975 :
(a)the Tribunal shall not, in its decision, or reasons for a decision, in a matter arising under this Act, include any matter or information of a kind referred to in paragraph (1)(a); and
(b)the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in paragraph (1)(a).
Section 64 - Production of exempt documents
(1)Sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 do not apply in relation to a document that is claimed to be an exempt document, but in proceedings before the Tribunal in relation to such a document, the Tribunal may, for the purpose of deciding whether the document is an exempt document, require the document to be produced for inspection by members of the Tribunal only.
(1AA) If, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal must return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is:
(a)a member of the Tribunal as constituted for the purposes of the proceeding; or
(b)a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or
(c)in the circumstances permitted under paragraph 60A(6)(a)--the Inspector-General of Intelligence and Security.
(1A) If, for the purposes of proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document, the document is voluntarily produced to the Tribunal, then only:
(a)the members of the Tribunal as constituted for the purposes of the review; or
(b)a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff;
may inspect, or have access to, the document.
(2) The Tribunal may require the production, for inspection by members of the Tribunal only, of an exempt document for the purpose of determining whether it is practicable for an agency or a Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document and, where an exempt document is produced by reason of such a requirement, the Tribunal shall, after inspection of the document by the members of the Tribunal as constituted for the purposes of the proceeding, return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is:
(c)a member of the Tribunal as constituted for the purposes of the proceeding; or
(d)a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or
(e)in the circumstances permitted under paragraph 60A(6)(a)--the Inspector-General of Intelligence and Security.
Note: The Tribunal is not entitled, under this section, to require production of documents that are exempt under section 33, 34 or 45A, but is entitled to do so under section 58E if the Tribunal is not satisfied by evidence on affidavit or otherwise that the document is an exempt document.
In this regard, I note that some of the information sought by the applicant is available to the Tribunal in unredacted form although not available to the applicant. The respondent put forward to the Tribunal that it has made available parts of confidential clauses in the various documents for which it does not seek exemption.
The applicant referred to the fact that information had been disclosed little by little over a long period of time. That is not unusual in cases such as the present where there is a continual review of the documents in issue.
Having regard to provisions of the legislation, I find that it is not appropriate for the Tribunal to make any orders in regard to this request. I note that, at hearing, some of the confusion regarding the nature of particular documents was resolved, and I do not believe it necessary to again address them here.
Issue 2 – request to summons witnesses
Section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) contains the Tribunal’s powers regarding the issue of summons:
Power to summon person to give evidence or produce documents
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a)appear before the Tribunal to give evidence;
(b)produce any document or other thing specified in the summons.
(2) The President or an authorised member may refuse a request to summon a person.
(3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to appear before the Tribunal unless:
(a)the summons or another summons requires the person to appear before the Tribunal; or
(b)the Tribunal directs the person to appear before the Tribunal.
In their submissions, the Respondent also submitted that the Tribunal should have reference to the objective set out in s 2A of the AAT Act when considering the issue of the summons:
Tribunal's objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
The basis upon which request to issue summons should be treated by the Tribunal was well enunciated by Deputy President Forgie in Jones and Comcare [2019] AATA 5407. I note further that the Full Court of the Federal Court of Australia has found that those principles that apply to the issuing of subpoenas in courts apply equally to this Tribunal.
In particular, Deputy President Forgie noted in [11]:
The principles underpinning grounds such as these are twofold. One is that a subpoena will be set aside if it is an abuse of process. That is a consequence of the inherent power in a court, and the express power given to the Tribunal under s 33 of the AAT Act, to control and supervise its proceedings. That power includes the incidental power to prevent an injustice. “… In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power.”
I also agree with Deputy President Forgie’s observation in paragraph [12], and in particular the general principles outlined by Beaumont J in Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 where he said as follows:
The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose: see Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100–1. But, as Deane and Gaudron JJ observed in Hamilton v Oades (1989) 85 ALR 1 at 11, the court’s general powers in this area have a dual aspect: ‘The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice … [This] power … is not restricted to defined and closed categories … In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. …
In other words, the present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly [Pty Ltd, being the party to whom the subpoena had been issued to it]

There is a great deal of authority on the issue of issuing subpoenas/summonses. In particular, I note the comments of DP Forgie in [14]:
The second aspect I need to explore further is one that I also considered in General Merchandise:
If the summons is essentially based on mere speculation that the person named in it has relevant material, its being seen as for the purposes of the hearing of a proceeding becomes more tenuous. Principles developed by the courts in relation to ‘fishing expeditions’ when considering subpoenas will raise themselves for consideration. They are part of a wider group of principles developed by the courts to determine whether a subpoena is oppressive. Given that the person answering the subpoena is a stranger to the proceedings, the principles can be seen as tools to determine the proper balance between obtaining evidence and material to the issues between the parties in a matter and the burden imposed upon the recipient of the subpoena. Precisely the same balance must be achieved in deciding whether a request for a summons should be refused or, if issued, a summons should be set aside.
A fishing expedition has been described by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd25 in this way:
A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.26
As King CJ, with whom both White and Millhouse JJ concurred, said in Hunt v Wark :27 … There must be some reason to suppose that the documents sought will be capable of being used ….
As was noted by the parties in the interlocutory hearing, Deputy President Forgie also refers to the Federal Court decision in Comcare v Maganga (2008) 101 ALD 68, in which Bennett J said at [37]:
…the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings…
The respondent also referred to the Tribunal to the case of Secretary of the Department of Planning, Industry, and Environment v Blacktown City Council [2021] NSWCA 145 (‘Blacktown City Council’), in which the Bell P, Brereton and McCallum JJA determined that, in the case of a subpoena issued in civil proceedings, the party requesting the issue of a subpoena need not prove that the material would materially assist that party’s case, but rather that the evidence being produced may materially assist on an identified issue.
Dealing with each of the persons the applicant wishes to summons in turn, I will begin with Dr Livingstone.
Dr Catherine Livingstone
Dr Catherine Livingstone is the previous Chair of the Commonwealth Bank of Australia during the period in which the CBA invested in the AGBF Pty Ltd.
In the case of Dr Livingstone, it is difficult to see how her evidence materially would assist the Tribunal in resolution of the issues before it.
Dr Livingstone was said to have made certain assurances to shareholders in relation to the Australian Business Growth Fund at a shareholders’ meeting, and public comments regarding her expectation that certain documents would be made public. Those comments were made prior to the execution of the ABGF Shareholder agreement in question, which contained the relevant confidentiality clauses.
The applicant submits that the evidence of Dr Livingstone serves a ‘legitimate forensic purpose’ in that being given an opportunity to cross-examine Dr Livingstone may aid in shedding light on some of the issues before the Tribunal, in particular whether the Commonwealth Bank of Australia intended the ABGF shareholder agreement to be publicly disclosed, and in addressing one of the provisions under which exemption is claimed for the documents in issue. It is not necessary for the Tribunal to know why Dr Livingstone made those assurances or statements, or even if she were mistaken in doing so.
The Respondent asserted, at hearing, that the evidence of Dr Livingstone would not inform the Tribunal of the operation of the confidentiality clause, which is fundamentally the issue the Tribunal must resolve.
Overall, I am of the opinion any evidence that Dr Livingstone would be able to give to the Tribunal would be of little assistance to resolving the issues before it.
Mr Josh Frydenberg
Mr Frydenberg was the Australian treasurer at the time that the various discussions/agreements leading to the creation of the AGBF took place.
The applicant asserted in their written submissions that Mr Frydenberg was “deeply involved in the proposal, design, procurement of prudential changes, commonwealth funding, and execution of the ABGF Key Terms and ABGF’s Shareholder Agreement.”
It is likely that Mr Frydenberg’s direct involvement in any discussions was limited, and any actions he took would have been informed by briefings by Treasury officials.
His public statements are on the record, and can be produced at any substantive hearing.
The Tribunal has before it an affidavit of Mr Warren Tease who was the Treasury official and representative directly involved in setting up the Fund during the period in which its term sheet and shareholders' agreement were being negotiated, and may have had involvement in briefing the Treasurer. Given that his evidence is before the Tribunal, and he will be made available for cross-examination, it’s difficult to see how any evidence from Mr Frydenberg would assist the Tribunal in resolving the issues before it.
Mr Isaac Rankin
Mr Rankin was, and continues to be, an employee of the Australian and New Zealand Banking Group Limited (‘ANZ’). The applicant asserts, and the Respondent accepts, that Mr Rankin was closely involved in the ANZ’s contribution to the establishment of the ABGF.
The applicant asserted that Mr Rankin is uniquely placed to provide information to the Tribunal regarding the intention of the ANZ when signing the ABGF shareholder agreement regarding the confidentiality clause, and that this evidence would assist the Tribunal in determining whether the exemptions claimed over the documents in issue apply.
The Tribunal has evidence before it as to the views of Mr Rankin in the T-documents, and it is difficult to see what further evidence Mr Rankin could give beyond these documents. The Respondent asserted that, along with this evidence, there is also in evidence a letter from King & Wood, Mallesons on behalf of the banks involved collectively, and that there is little that Mr Rankin could foreseeably add that would materially assist the Tribunal in determining the issues before it.
Having considered the material, I am of the opinion that any evidence Mr Rankin could provide the Tribunal that could be of use to the Tribunal has already been adduced, and there would be no useful purpose served by issuing the summons as requested.
Overall, I consider that for all three persons for whom a summons is sought, there would be significant personal inconvenience to each of those parties for very little benefit to the Tribunal in seeking to deal with the issues before it, especially given the evidence of Mr Tease, the ability of the applicant to enter into evidence the public statements of Mr Frydenberg, and the material already before the Tribunal that relates to information that might be provided by Mr Rankin.
The applicant raised the comments of Brereton J in Blacktown City Council at [84]:
In modern litigation, the subpoena for production is crucial to the ability of a party to investigate the facts and assemble evidence to prove a case. That is particularly so in civil litigation, where a plaintiff does not have the extra‐curial investigative powers that are available to police and prosecutors in the criminal context.
The applicant said that Mr Tease could not provide the same evidence as insiders, such as Mr Frydenberg in particular, may be able to provide. However, evidence as to the involvement of Mr Frydenberg and of Dr Livingstone in the matter, while potentially of some interest, are unlikely to be particularly relevant to the resolution of the matters before the Tribunal.
I also note there was some discussion at hearing of a parliamentary privilege issue that the applicant foresaw might be a barrier to his being able to properly adduce evidence from Mr Tease on cross-examination. At hearing, counsel for the Respondent noted that it may be a matter of correctly framing the questions at hand and offered assistance to the applicant in how to correctly frame questions in cross-examination so as to avoid a parliamentary privilege problem while still dealing with the substance of the issues at hand. I am of the opinion that this is rather an issue that is more appropriately addressed during the substantive hearing of the matter, during the cross-examination of Mr Tease, than in this decision.
On the basis of the evidence before me, I refuse the request to issue summons to appear for Dr Catherine Livingstone, Mr Josh Frydenberg, and Mr Isaac Rankin.
Issue 3 – the opinion rule
The applicant asserted that the letter annexed to the affidavit of Mr Warren Tease, produced collectively on behalf of several banking institutions involved with the ABGF by King & Wood, Mallesons, was inappropriate for the Tribunal to consider as it was ‘opinion masquerading as expert evidence’ and requested the letter be excluded from evidence.
The Respondent, in reply, accepted that some of the letter was the expression of opinion, but that other parts of the letter contained an expression from the banks’ representative of the nature of the information in issue, and the consequences of disclosure. They put forward that it was rather a matter of weight to be given to those parts of the letter that the Tribunal was willing to place weight on.
In relation to this matter, I note the comments of Deputy President Forgie in Proctor and Commissioner of Taxation (2005) 87 ALD 247. I stated at hearing that any consideration of these documents would be a matter of weight for the Tribunal if the letter were to be admitted. I note the argument as to conflict of interest, given that the applicant uses the relevant legal firm within their own operation although in a separate and different area of law, and the applicant’s perception that because this letter is from a particular law firm, this letter might carry undue weight before the Tribunal.
On balance, I find that the letters should not be excluded. The Tribunal is well able to determine the appropriate weight to be given to the letters and is highly unlikely to be unduly influenced by which particular law firm is giving the advice.
Issue 4: request for confidentiality order in 2022/4734
On 29 July 2022, the Respondent requested a further confidentiality order be made over document T6(a) of the T-documents in 2022/4753 on the basis that the material would disclose references to exempt material and comprised of an internal communication that attracts legal privilege.
The applicant contended that that they should be provided with an unredacted version of this document and asked the Tribunal to make orders under s 37(2) of the AAT Act.
The Tribunal has reviewed the document in question, and believes it appropriate that such order be made.
Decision
On the four separate interlocutory issues raised at the interlocutory hearing, I find that:
(a)Issue 1 – the Tribunal refuses the applicant’s request to make orders regarding the disclosure of the confidentiality clauses contained within the documents in issue.
(b)Issue 2 – the Tribunal refuses the applicant’s requests to issue summons to give evidence to Dr Catherine Livingstone, Mr Josh Frydenberg, and Mr Isaac Rankin.
(c)Issue 3 – the Tribunal refuses the applicant’s request to exclude the letter of King & Wood Mallesons, dated 15 August 2022, from evidence; and
(d)Issue 4 - the Tribunal makes the following order under s 35 of the Administrative Appeals Tribunal 1975 (Cth) in relation to the matter of 2022/4753:
1. Pursuant to subsection 35(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that publication or other disclosure of paragraphs 4-20 of Tribunal Document 6(a) is restricted to:
(a) the Respondent, their legal advisers and other persons who are directly involved with the preparation and conduct of the Respondent’s case;
(b) Members and staff of the Tribunal, including transcription service providers, performing duties in relation to the proceeding.
2. This order operates until further order of the Tribunal.
3. The parties have liberty to apply.

I certify that the preceding 64 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate
Dated: 18 November 2022

Date(s) of hearing: 30 September 2022

Advocate for the Applicant: Mr B. Bucknell

Counsel for the Respondent: Mr J. Davidson

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	30 September 2022
Advocate for the Applicant:	Mr B. Bucknell
Counsel for the Respondent:	Mr J. Davidson
Solicitors for the Respondent:	Australian Government Solicitor