Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd

1. For the reasons that have been given, by filing and serving the affidavits of Mr Koh and Mr Molu, Mastercard has waived privilege in respect of communications to which Mr Koh and Mr Molu were parties that address certain subjects or topics. In the case of Mr Koh, the subject matter or topic is Mastercard's strategy or purpose of in offering, negotiating, approving or entering SMAs. In the case of Mr Molu, the subject matter or topic is Mastercard's strategy or purpose in offering, negotiating, approving or entering SMAs and/or the likely effect of such SMAs. Mastercard should produce unredacted copies of any documents that comprise or refer to any such communications unless they are the subject of an independent privilege claim that does not fall within the scope of the waiver. I will make orders to give effect to that finding. I do not propose to make any order in respect of the ACCC's claim concerning the production of documents said to have been waived by the Letford email, or documents otherwise referring to the Foster advice.
2. Given the somewhat mixed result, I propose to reserve making any order in respect of the costs of the ACCC's further amended interlocutory application. I will entertain submissions at some later point in respect of those costs.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.