Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited - [2021] FCA 1208 - FCA 2021 case summary — Zoe

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Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited

[2021] FCA 1208

Federal Court of Australia|2021-10-08|Before: Wigney J

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Source facts

Court

Federal Court of Australia

Decision date

2021-10-08

Before

Wigney J

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

BACKGROUND - COMMITTAL PROCEEDINGS IN THE LOCAL COURT 13 J.P. Morgan's application to set aside the subpoenas, or parts thereof, warrants close examination of the privilege claims that were made by ASIC and J.P. Morgan in answer to subpoenas issued by the Local Court, as well as the manner in which the magistrate resolved those claims. 14 While the offences with which the accused have been charged are all under the C&C Act and are therefore federal offences, s 68 of the Judiciary Act 1903 (Cth) provides, in effect, that State or Territory laws with respect to the charging, examination and commitment for trial of persons are to be applied to persons charged with federal offences and that State and Territory courts that have jurisdiction in relation to the charging, examination and commitment for trial of persons charged with State or Territory offences have like jurisdiction in respect of persons charged with federal offences. It was no doubt on that basis that committal proceedings against the accused were commenced in the Local Court of NSW in June 2018 by the issuing and filing of court attendance notices in accordance with s 47 of the Criminal Procedure Act 1986 (NSW). It may be observed, however, that it is open to the Director to file an indictment directly in this Court without first instituting committal proceedings in a State or Territory court. The circumstances of this case perhaps demonstrate why that would often be a prudent course for the Director to take. 15 The prosecutor named in the court attendance notices in the Local Court was Mr Rob Ghali of the ACCC, who was no doubt a "public officer" for the purposes of s 48 of the Criminal Procedure Act. There could, however, be little doubt that the committal proceedings were relevantly "carried on" by the Director pursuant to s 6(1)(b), (c) or (e) of the Director of Public Prosecutions Act 1983 (Cth), s 3(1)(a)(i) and (iii) of the Director of Public Prosecutions Regulations 1984 (Cth) and subsequently s 6(1)(a)(i) and (v) of the Director of Public Prosecutions Regulations 2019 (Cth).

[3]

Objections to production in the Local Court on the basis of privilege claims by J.P. Morgan and ASIC 19 At the hearing before the magistrate on 30 January 2020, ANZ called on the subpoenas to the ACCC and ASIC issued on 19 December 2019. The ACCC, ASIC and J.P. Morgan objected to production of the unredacted copies of documents, including the WPP documents, on the basis that those documents were privileged or immune from production on the basis of legal professional privilege and without prejudice privilege. The ACCC's objection was based entirely on the privilege claims by ASIC and J.P. Morgan. It is unnecessary, for present purposes, to say anything further in respect of the legal professional privilege claims in the Local Court. The basis of the without privilege claims were said to be that the redacted parts of the documents contained or revealed communications between officers of ASIC and J.P. Morgan in connection with an attempt to negotiate the settlement of a dispute between ASIC and J.P. Morgan. 20 In challenging the without prejudice privilege claims by ASIC and J.P. Morgan, ANZ read and relied on a very lengthy affidavit sworn by one of its solicitors. It also relied on detailed written and oral submissions. ASIC read and relied on an affidavit sworn by one of its officers. ASIC and J.P. Morgan each relied on written and oral submissions in respect of the privilege claims. There is no indication that any of the other accused played any, or any active, role in the hearing of the contested privilege claims in relation to the ANZ's subpoenas. 21 The following points should be made concerning the nature and statutory context of the privilege claims by J.P. Morgan and ASIC. 22 First, the privilege claims were made in the context of committal proceedings. Committal proceedings are "conducted in the exercise of an executive or ministerial function" and are not judicial in nature: Grassby v The Queen (1989) 168 CLR 1 at 11. Part 2 of Chapter 3 of the Criminal Procedure Act sets out the steps that must be taken in committal proceedings. The key steps are: the service of the brief of evidence and a 'charge certificate' by the prosecutor; the holding of case conferences, the primary purpose of which is to ascertain the accused's plea to the charges; and the examination and cross-examination of prosecution witnesses who have been required by the magistrate to attend the proceedings. It is relevant to note that the steps do not involve or require the magistrate to make any decision concerning the sufficiency of the prosecutor's evidence, let alone the guilt or otherwise of the accused. A magistrate essentially must commit an accused person for trial where the accused person has entered a plea of not guilty: s 96 of the Criminal Procedure Act. 23 Second, as already noted, the relevant subpoenas were presumably issued by a registrar of the Local Court pursuant to s 222 of the Criminal Procedure Act. That provision applies to committal proceedings by virtue of s 58 of the Criminal Procedure Act, which relevantly provides that Part 3 of Chapter 4 of the Criminal Procedure Act applies, "subject to any necessary modifications … to committal proceedings conducted by a Magistrate in the same way as they apply to proceedings for offences before the Local Court". Part 3 of Chapter 4 of the Criminal Procedure Act relates to the "[a]ttendance of witnesses and production of evidence in lower courts" and includes ss 220 to 232. 24 Third, s 225(b) of the Criminal Procedure Act relevantly provides that a person named in a subpoena is not required to produce any document or thing if "the person named would not be required to produce the document or thing on a subpoena for production in the Supreme Court". It may be taken that ASIC and J.P. Morgan effectively contended that, had the subpoenas been issued by the Supreme Court, ASIC and the ACCC would not have been required to produce unredacted versions of the WPP documents in answer to those subpoenas because they had a basis for objection pursuant to s 131 of the Evidence Act (NSW) as extended by s 131A of that Act. 25 Fourth, the subpoenas appear to have been issued, and the objections to production by the ACCC, ASIC and J.P. Morgan made, at a stage in the committal proceeding when prosecution witnesses who had been required to attend were, or were about to be, examined. 26 Fifth, as has already been made tolerably clear, the privilege claims by J.P. Morgan and ASIC in respect of the unredacted WPP documents was based on s 131(1) of the Evidence Act (NSW), which provides: (1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. 27 While s 131(1) concerns the exclusion of evidence of settlement negotiations, s 131A extends its operation to include the situation where a party objects to a requirement to produce a document. Subsection 131A(1) provides as follows: (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. 28 Subsection 131A(2)(a) of the Evidence Act (NSW) provides that a "disclosure requirement" relevantly includes a "process" that requires the disclosure of a document and includes a subpoena to produce documents. 29 Sixth, s 131(2) of the Evidence Act (NSW) provides that s 131(1) does not apply in certain specified circumstances. ANZ's challenge to the privilege claims by J.P. Morgan and ASIC appears to have been based, at least to some extent, on the contention that some of the exclusions or exemptions in s 131(2) applied to J.P. Morgan and ASIC's objections. It would appear, however, that ANZ also argued before the magistrate that s 131 of the Evidence Act (NSW) did not apply and that the objections had to be determined on the basis of the common law principles of without prejudice privilege. While the basis of that submission is somewhat unclear, it appears to have been argued that only a person who was required by a "disclosure requirement" to produce a document was permitted to object to production on the basis of s 131, as extended by s 131A of the Evidence Act (NSW). J.P. Morgan was not such a person as no subpoena had been served on it. That said, ASIC was such a person and it is somewhat unclear on what basis it was said that ASIC was unable to object to production on the basis of ss 131 and 131A, particularly as those provisions do not require that the person objecting to production be a party to the proceeding in which the subpoena was issued.

[4]

The magistrate's decision 30 On 7 February 2020, the magistrate upheld the objections based on the privilege claims by ASIC and J.P. Morgan in respect of unredacted copies of the WPP documents. The magistrate gave oral reasons for that decision. 31 Before briefly addressing the magistrate's reasons, it is perhaps relevant to note that the magistrate plainly considered that her decision concerning the objections to production in answer to the subpoenas issued by ANZ was an interlocutory decision. Her Honour said, in that relation to that issue (see Local Court transcript, 7 February 2020 at p 2): It is an objection balance striking exercise. On the basis of our voluminous written submission from all four parties, all contain exhaustive reasons why the parties should be granted what they want [sic]. Clearly that cannot happen and it falls to me to try to reconcile all of the written submissions, the evidence they have put on, the cases they have referred me to which I found very difficult and very time consuming for an interlocutory subpoena matter in an administrative committal which is passing through the local court on its way to trial in the federal court where of course all this will no doubt be agitated again. … But the parties need a decision to move forward. We need to finalise these interlocutory disputes to give the hearing clear air. To hear from the witnesses who were ordered to give evidence, of whom there are still five to go and only seven hearing days left in which to accomplish that. (Emphasis added.) 32 In any event, in considering the objections based on the privilege claims by ASIC and J.P. Morgan, the magistrate first addressed the question whether the claims were to be considered and determined having regard to s 131 of the Evidence Act (NSW), or the common law. Her Honour concluded that the objections were to be determined in accordance with the Evidence Act (NSW) because, it seems, the dispute involved ACCC documents and the ACCC was a party to the committal proceedings. Her Honour reasoned as follows (see transcript at p 8): On balance, it seems the ACCC documents are involved, they are the prosecutor in these proceedings, they have arguably stated an objection; ASIC is the subpoenaed party and JP Morgan have joined their claim with theirs, so I am satisfied the Evidence Act applies. This was the tip of the iceberg I had with all the arguments and submissions. White was black, black was white. 33 It would appear that the magistrate arrived at that conclusion, or those conclusions, on the basis of the evidence that had been adduced by ASIC in respect of the nature of the documents in question and the alleged dispute and settlement negotiations. It does not appear that the magistrate considered it necessary to inspect the documents in question. 34 The magistrate next considered whether the redacted parts of the WPP documents recorded or disclosed communications "between persons in dispute", or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute for the purposes of s 131(1)(a) of the Evidence Act (NSW). Her Honour concluded that they did and rejected ANZ's submission that any such dispute was unconnected with the committal proceeding. Her Honour reasoned as follows (see transcript at p 10): I am satisfied on balance that there can be a dispute between ASIC and JP Morgan and that there actually is a dispute between them, and that there is communication between them, and between them and a third party in an attempt to negotiate a settlement of the civil dispute. I am satisfied on balance a sufficient temporal and circumstantial connection to these proceedings is made out regarding the events of August 2015. I am satisfied on balance ASIC and JP Morgan can bring the claimed negotiation communications under the privilege protection of s 131(1). 35 The magistrate next considered whether any of the exceptions in s 131(2) applied. ANZ appears to have argued that, if the privilege issue was to be determined having regard to s 131 of the Evidence Act (NSW), as opposed to the common law, the exceptions in s 131(2)(f), (g), (i) and (k) applied. ASIC and J.P. Morgan argued that none of the exceptions in s 131(2) of the Evidence Act (NSW) applied or had been made out. It is unnecessary to detail the magistrate's findings concerning those exceptions. If suffices to note that her Honour was not satisfied that any of the exceptions in s 131(2) applied. 36 The magistrate concluded as follows (see transcript at p 12; emphasis by uppercase in original): CONSEQUENTLY I AM SATISFIED THE WITHOUT PREJUDICE PRIVILEGE CLAIMED BY ASIC AND JP MORGAN UNDER S 131 IS MADE OUT ON BALANCE AND I AM NOT SATISFIED ANY OF THE CLAIMED EXCEPTIONS TO DEFEAT THAT PRIVILEGE HAVE BEEN MADE OUT ON BALANCE.

[7]

Res judicata, cause of action estoppel and issue estoppel 41 Res judicata (a 'matter adjudicated'), in the strict sense, is the rule or doctrine whereby a judicial determination which settles or quells a controversy between persons or classes of persons concerning the existence of certain rights or obligations results in those rights or obligations 'merging' in the final judgment, with the result that those rights or obligations cease to have any independent existence and cannot be reasserted in subsequent proceedings: Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28 at [20] and the cases there cited; Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44 at [66]. For the doctrine of res judicata to operate, it must be shown that the earlier judicial determination was a final judgment on the merits and that, as between the former and present litigation, there is identity of parties, as well as identity of subject matter or cause of action: Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 909-913, 935; Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Limited (1992) 36 FCR 406 at 412. 42 Estoppel is a common law doctrine, informed by considerations of "finality and fairness", which, in the context of the rendering of final judgments in adversarial proceedings, operates "as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law": Tomlinson at [21] and the cases there cited. According to majority of the High Court in Tomlinson (at [22]), "three forms of estoppel have been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment", though only two are potentially relevant to this matter. The first is sometimes referred to as "cause of action estoppel" and the second is sometimes referred to as "issue estoppel". 43 Cause of action estoppel "operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the [previous] proceeding and which was determined by the judgment": Tomlinson at [22]. There are two main differences between res judicata, in the strict sense, and cause of action estoppel. The first difference is that cause of action estoppel does not involve the notion that the rights or obligations found to exist merge into the judgment. Thus, cause of action estoppel may also apply where the right or obligation adjudicated upon was found not to exist in the earlier proceeding, so there is nothing to merge into the judgment: Clayton v Bant at [67]; Trawl Industries at 409; Thoday v Thoday [1964] P 181 at 197-198. The second difference is that the doctrine of estoppel, including cause of action estoppel, "extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc": Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453; see also Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [22]. 44 Save for those two differences, the elements of cause of action estoppel are essentially the same as res judicata. It must be shown that the judgment or determination which is said to create the estoppel was final, that the right or obligation determined in that judgment or determination is identical to the right or obligation to be determined in subsequent proceedings and that the parties "or their privies" in the two sets of proceedings are the same: Carl Zeiss at 935; Kuligowski at [21]-[22]. It should perhaps also be noted that, while this form of estoppel may sometimes be called cause of action estoppel, the expression "cause of action" in this context has been said to be somewhat problematic and imprecise: Clayton v Bant at [28] (Kiefel CJ, Bell and Gageler JJ) and [67] (Edelman J). The relevant sense in which the expression is used in this context is "that of title to the legal right established or claimed" (Kiefel CJ, Bell and Gageler JJ at [28]) and it "might extend either to the legal right claimed or to the facts that the plaintiff must establish for their claim" (Edelman J at [67]). The focus must be on substance rather than form: Trawl Industries at 418; Clayton v Bant at [34] (Kiefel CJ, Bell and Gageler JJ) and [68] (Edelman J). 45 Issue estoppel "operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment": Tomlinson at [22]. The consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies": Blair v Curren (1939) 62 CLR 464 at 531. The essential difference between cause of action estoppel and issue estoppel is that the former precludes the assertion of a right or obligation that was determined in the first proceeding, whereas the latter precludes the raising of an issue of fact or law that was necessarily determined in the first proceeding. Save for that difference, the elements are essentially the same; the judgment in the first proceeding must again have been final, there must be identity between the question or issue determined or to be determined in both sets of proceedings and the parties or their privies in the two proceedings must be the same. 46 The High Court in Kuligowski (at [47]) emphasised the "strict requirements for the application of issue estoppel" which were exemplified by the following statement by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 (at 276): Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. (Emphasis added.) 47 More recently, however, the plurality in Clayton v Bant emphasised (at [34]) that the doctrine looks "not for absolute identity between the sources and incidents of rights asserted or capable of being asserted in consecutive proceedings", but rather "for substantial correspondence between those rights". It suffices that "the rights are of a substantially equivalent nature and cover substantially the same subject matter": Clayton v Bant at [34]. As noted earlier, the focus is on substance rather than form. 48 As for whether the judgment or determination in the first proceeding was relevantly final, the High Court in Kuligowski put the test in the following terms (at [25]): A "final" decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be "final and conclusive on the merits": "the cause of action must be extinguished by the decision which is said to create the estoppel". (Emphasis added; footnotes omitted.) 49 It should perhaps be emphasised that the element of this test that directs attention to whether the decision was "completely effective unless and until rescinded, altered or amended" was drawn from the judgment of Isaacs J in Ainslie v Ainslie (1927) 39 CLR 381 where his Honour, in addressing whether an order was relevantly final in character, said (at 390) that the "true rule is to see whether or not the Legislature has by its enactment left the order entirely floating, so to speak, as a determination enforceable only as expressly provided and in the course of that enforcement subject to revision, or whether the order has been given the effect of finality unless subsequently altered". His Honour found that an aspect of one of the orders in question was not final because something more needed to be done before it could be enforced or was enforceable. In Somodaj v Australian Iron and Steel Limited (1963) 109 CLR 285 at 297-298, Kitto, Taylor and Menzies JJ referred to that statement by Isaacs J in Ainslie, again in the context of determining whether a decision by an administrative decision-maker was final, and concluded that the legislation in question indicated that the decision was "an adjudication upon the rights of the parties, not of an interlocutory character, but completely effective unless and until it should be rescinded, altered or amended" by the relevant decision-maker.

[8]

Abuse of process 50 The policy which underpins the doctrines of res judicata and cause of action and issue estoppel is the policy of finality and fairness in litigation. The High Court has said in that regard that "the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings" (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [36]) and that a "central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances": D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]. 51 The doctrine of abuse of process is "informed in part by similar considerations of finality and fairness" and "[a]pplied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel": Tomlinson at [24]. The doctrine of abuse of process, however, is "inherently broader and more flexible than estoppel": Tomlinson at [25]. It is "capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute": Tomlinson at [25]. 52 Importantly, for present purposes, "it has been recognised that making such a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel": Tomlinson at [26]. Thus, proceedings before a court can be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, the continuance of the proceedings "would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings": Walton v Gardiner (1993) 177 CLR 378 at 393. 53 In Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142, Handley JA (with whom Mason P and Heydon JA agreed) referred, with approval, to the following statement by Giles CJ Comm D in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports ¶81-423 at 64,089 concerning the relevant considerations to which regard may or should be had in determining whether a proceeding should be stayed as an abuse of process in circumstances where an issue in the proceeding had been litigated and determined in earlier proceedings: The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are - (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; … (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process. 54 This list of potentially relevant considerations was obviously not intended to be prescriptive or exhaustive. Moreover, it is well accepted that "[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories": Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [9]. In the present context, however, the question for the Court is ultimately whether, having regard to all the relevant facts and circumstances, the use of its processes to re-litigate a right or issue determined in earlier litigation or proceedings could be said to be "seriously and unfairly burdensome, prejudicial or damaging"; "productive of serious and unjustified trouble and harassment"; "unjustifiably oppressive to one of the parties"; or "would bring the administration of justice into disrepute": see Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 at [10] referring, with approval, to Ridgeway v The Queen (1995) 184 CLR 19 at 75; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247; Hamilton v Oades (1989) 166 CLR 486 at 502; and Rogers v The Queen (1994) 181 CLR 251 at 286.

[10]

Do the doctrines of res judicata or estoppel apply to the subpoenas? 56 ANZ put forward a number of reasons why the doctrines of res judicata and estoppel cannot apply to the subpoenas, despite the fact that the magistrate in the committal proceedings determined that the redacted parts of the WPP documents were not required to be produced. Most of those reasons can be disposed of shortly. 57 ANZ argued that the doctrines of res judicata and estoppel could not apply because the committal proceedings before the magistrate were administrative in character. It may be accepted that committal proceedings are administrative, not judicial, in character. As has been explained, however, estoppel can apply in respect of administrative or other non-judicial decisions and determinations: Daera Guba at 453; Kuligowski at [22]. The test, as noted above, is whether the relevant decision-maker exercised their "jurisdiction to decide finally a question arising between parties" and is not dependent on whether the forum's "status is judicial or administrative": Daera Guba at 453. It is, in those circumstances, unnecessary to consider or determine J.P. Morgan's submission that the magistrate's decision in relation to the subpoena was judicial in nature, despite it having been made in the context of what was an administrative or executive procedure. 58 ANZ also argued that the doctrine of issue estoppel cannot apply in respect of the magistrate's decision because it has been held that issue estoppel does not apply in criminal proceedings. 59 It may be accepted that the prevailing view is that the doctrine of issue estoppel does not apply in criminal proceedings: R v Storey (1978) 140 CLR 364 at 371-374 (Barwick CJ), 379-389 (Gibbs J) and 400-401 (Mason J); Rogers at 254-255 (Mason CJ), 278 (Deane and Gaudron JJ). It is, however, tolerably clear that that is only the case in respect of rulings and verdicts in criminal trials, not in respect of decisions made in committal proceedings, let alone decisions of the type in question in this case. 60 In Rogers, Mason CJ (at 255) summarised the reasons given in the judgments of Barwick CJ, Gibbs J and himself in Storey which compelled the view that issue estoppel did not apply in criminal proceedings in the following terms: The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law. Moreover, the introduction of issue estoppel and all its complexities would serve only to make the criminal law more convoluted. 61 The reasoning of Deane and Gaudron JJ in Rogers was similar. Their Honours noted (at 278) that issue estoppel would "overlap with the plea of autrefois acquit and with the doctrines that have already developed" and that the "preferable course" was to "accept that the principles which operate in this area are fundamental and that the pleas and the developed doctrines relating to the unassailable nature of acquittals and the need for consistency may not exhaust their operation". 62 In summary, it would appear that the essential reason why it was considered that it was unnecessary and undesirable for the doctrine of issue estoppel, as it had developed in civil proceedings, to be applied in criminal trials, was that the relevant field was essentially already covered by the doctrine of res judicata, which applies specifically in criminal proceedings in the context of the pleas or defences of autrefois acquit and autrefois convict, as well as other established principles unique to the criminal law, such as the rule against double jeopardy. As Edmunds J put it concisely in Vasiljkovic v Honourable Brendan O'Connor (2010) 276 ALR 326; [2010] FCA 1246 at [101], the effect of the decision of the majority in Rogers was that issue estoppel does not apply "when the identified special criminal law principles apply (in its place)". 63 The fact that issue estoppel does not apply in criminal proceedings does not, however, assist ANZ in the particular circumstances of this case. That is because the "special criminal law principles" could not sensibly be said to apply to the question presently under consideration. It is at best questionable whether the proceedings before the magistrate could properly be characterised as a "criminal proceeding" in this particular context. The committal proceedings, of course, concerned criminal charges, but as already noted, committal proceedings are administrative in nature and do not require, or permit, the magistrate to make any findings concerning the guilt or otherwise of the accused. Plainly, therefore, the pleas of autrefois acquit or convict could not apply in respect of any finding made in those proceedings: see for example Potier v Maloney [2005] NSWSC 336 at [47]; Paulo v Commissioner of Police [2021] NSWSC 517. Moreover, while the proceeding in this Court is undoubtedly a criminal proceeding, the issue as to the availability of issue estoppel in this proceeding arises only in the context of an interlocutory application concerning whether a subpoena should be set aside, or objections to the production of certain documents on the basis of privilege claims should be upheld. The "special criminal law principles" could also not sensibly be said to apply to such determinations. 64 It follows that the reasoning in Storey and Rogers concerning the inapplicability of issue estoppel in criminal proceedings has no real application in this case. In any event, even if that reasoning did apply, it would only exclude the operation of issue estoppel, not res judicata. 65 ANZ argued that the parties in the Local Court proceedings were not the same as the parties in this proceeding. That was said to be the case because the "Local Court committal proceedings were commenced by the ACCC and not the CDPP". 66 It is not strictly correct to say that the committal proceedings were commenced by the ACCC, though it may be accepted that the court attendance notices named the prosecutor as an officer of the ACCC. In any event, as noted earlier, there could be little doubt that the prosecution of each of the accused was relevantly being carried on by the Director. More significantly, the parties to the relevant dispute in the Local Court concerning production under the subpoenas were the same as the parties to the dispute concerning the subpoenas in this Court - ANZ, as the party calling on the subpoena, and J.P. Morgan and ASIC, as the parties objecting to production of the WPP documents on the basis of without prejudice privilege. The 'identity of parties' test, at least in the case of issue estoppel, is not merely testing "who actually is a party" to the proceeding, but whether the parties to the "relevant issue" or "controversy" were the same: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 357-358. In all the circumstances, the alleged lack of identity of the parties provides no basis for ANZ's contention that res judicata and estoppel are inapplicable or unavailable in the circumstances of this case. 67 It should perhaps also be noted in this context that it could not really be said that the other accused, that is, those other than ANZ, were relevantly parties to the dispute or issue in the Local Court concerning production pursuant to the subpoenas served on ASIC and the ACCC. The subpoenas were issued at the request of, and were called on by, ANZ alone. The objection to production was principally raised by ASIC and J.P. Morgan, although the ACCC, as a subpoenaed party, also made written submissions, albeit apparently very limited submissions in support of the privilege claims by ASIC and J.P. Morgan. None of the accused other than ANZ made any substantive submissions in respect of the objection to production, the application of ss 131 and 131A of the Evidence Act (NSW), or without prejudice privilege generally. As discussed in more detail later, it is difficult to see how, in those circumstances, it could be said that the accused other than ANZ could possibly be estopped or otherwise prevented from requesting the issue of subpoenas calling for the production of the WPP documents in this Court. 68 The more significant issues in respect of J.P. Morgan's contention that the subpoenas should be set aside on the basis of res judicata or estoppel are: first, whether res judicata, or cause of action or issue estoppel, can apply to the relevant right or obligation determined by the magistrate; second, whether it can be said that the magistrate's decision concerning the application of s 131 of the Evidence Act (NSW) to the WPP documents was a final judgment; and third, whether the rights determined by the magistrate in that regard are of a substantially equivalent nature and cover substantially the same subject matter as the rights for determination in the context of the subpoena dispute in this Court.

[11]

The right or issue determined by the magistrate 69 To address those issues it is first necessary to determine precisely what it is that the magistrate relevantly decided or determined. There was no dispute before the magistrate as to the validity of the subpoenas that had been issued by the Local Court at the request of ANZ. The issue was whether the ACCC and ASIC were obliged to produce unredacted copies of the WPP documents in the face of objections to production on the basis that the redacted portions of the documents were privileged from production. It was contended, in that context, that the effect of ss 131 and 131A of the Evidence Act (NSW) was that the ACCC and ASIC were not required to produce the documents because they contained or disclosed communications between ASIC and J.P. Morgan in connection with an attempt to negotiate a settlement of a dispute between them. The magistrate upheld the objections to production essentially on that basis. 70 It is difficult to see how the doctrine of res judicata, involving as it does the concept or notion of the rights found to have been established merging into the judgment, could be said to apply to the magistrate's determination. All that was determined by the magistrate was that ASIC and J.P. Morgan were entitled to object to production in answer to the subpoenas issued by the Local Court. Even if the determination could be characterised as determining the existence of a right, on the part of ASIC and J.P. Morgan, to object to the production of the unredacted WPP documents on the basis of s 131 of the Evidence Act (NSW), it is difficult to see how it could be said that the result of that determination was that the right so determined somehow merged in the judgment such that it (the right) no longer had any independent existence. The concept of merger, in that respect or context, would appear to have no application to such a determination. In those circumstances, it is difficult to see how the doctrine of res judicata, in the strict sense, could be said to have any application. 71 It is equally difficult to see how cause of action estoppel could apply to the magistrate's decision, even accepting that "cause of action" in this context should not be narrowly or strictly construed and may be taken to mean "title to the legal right claimed or established": cf Clayton v Bant at [28]. It is difficult to see how the magistrate's determination could accurately be characterised as establishing, conclusively and for all time and for all purposes, that ASIC and J.P. Morgan had a "title to the legal right" to object to production of the unredacted WPP documents. At most, it amounted to a determination that ASIC and J.P. Morgan had established a right, based entirely on the operation of s 131 of the Evidence Act (NSW), to object to the production of unredacted copies of the WPP documents in answer to the particular subpoenas issued by the Local Court at the request of ANZ. 72 As for issue estoppel, the magistrate's determination that the ACCC and ASIC were not required to produce the unredacted WPP documents in answer to the Local Court subpoenas involved a finding that the WPP documents disclosed a "communication that is made between persons in dispute … in connection with an attempt to negotiate a settlement of the dispute" and that accordingly s 131(1) of the Evidence Act (NSW) applied to those documents. It is, however, difficult to see how that determination could be said to have finally and conclusively disposed of that issue as between ANZ and the ACCC, ASIC and J.P. Morgan, so that it could not afterwards be contested or disputed by ANZ, even in the context of a different subpoena issued by a different court. That is all the more so if the issue subsequently arises in circumstances where, as here, the objection to production is based on the common law concerning without prejudice privilege, rather than s 131 of the Evidence Act (NSW). 73 It is perhaps unnecessary to finally decide whether the doctrines of res judicata or estoppel could apply to the magistrate's decision having regard to the limited nature of the issues or right determined by it. That is because, for the reasons that follow, the decision does not in any event satisfy the elements of finality and identity of issue that are necessary for the doctrines of res judicata and estoppel to apply to it. As will be seen, the issues that arise in the context of those elements overlap to a considerable extent with the issues just discussed.

[12]

The magistrate's decision was not final or conclusive of the issue 74 The most fundamental issue in relation to the applicability of the doctrines of res judicata and estoppel to the facts of this case concerns the element or requirement of finality. 75 There could be little doubt that the magistrate's decision to uphold J.P. Morgan's and ASIC's objections to the production of the unredacted WPP documents was an interlocutory decision or judgment. The principal or substantive proceedings before the magistrate were committal proceedings in respect of charges against each of the accused, including ANZ. The relevant subpoenas were issued in the context of the committal proceedings and the determination of the objection to production of the unredacted WPP documents in answer to the subpoenas was no more than an interlocutory determination in those proceedings. 76 The issuing of a subpoena to a "stranger" at the request of a party to a proceeding, and an application to set aside that subpoena, are interlocutory steps in the existing proceeding, not a separate proceeding: Brouwer v Titan Corporation Limited (1997) 73 FCR 241 at 242-243; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 362; Marsh v Adamson (1985) 9 FCR 408 at 417. A judgment in respect of the application to set aside the subpoena is accordingly an interlocutory judgment. A "stranger", in this context, refers to a person or entity who is not a party to the proceeding in respect of which the subpoena was issued: Brouwer at 243. 77 More significantly, for present purposes, it has been held that, where a subpoena has been issued to a stranger to the proceeding and that person claims that documents are immune or privileged from production, an order rejecting the claimed immunity or privilege and requiring the person to produce the documents in question is an interlocutory order: Brouwer at 243; Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd (2009) 179 FCR 323; [2009] FCAFC 105 at [25] (Flick J, with whom Spender and Lander JJ agreed); see also Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 673. Indeed, the Full Court in Brouwer stated (at 244) that "a decision in relation to a subpoena, the issue of which is a procedural step in the existing proceedings provided for by the rules of court governing them, seems to us to be a paradigm case of an interlocutory judgment": see also R v Gray at 362. 78 J.P. Morgan appeared to concede that the magistrate's decision upholding the objection to the production of the WPP documents on the basis of the application of ss 131 and 131A of the Evidence Act (NSW) was an interlocutory decision or order. It contended that the magistrate's determination was nevertheless final for the purpose of applying the doctrines of res judicata and estoppel. It relied, in that context, on the test for finality as propounded in Kuligowski at [25] - that the decision is "one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended". J.P. Morgan submitted that the finality or conclusive nature of the magistrate's determination was apparent from the fact that, had the magistrate not upheld the objection to production, the unredacted WPP documents would have been required to be produced. In J.P. Morgan's submission, that result would, as a practical matter, have been final insofar as J.P. Morgan and its privilege claim were concerned. 79 There would appear to be a number of difficulties with J.P. Morgan's contentions in that regard. 80 The first difficulty for J.P. Morgan is that, once it is accepted that the magistrate's order was interlocutory in nature, it would, at first blush at least, appear to be somewhat oxymoronic to contend that it was final. Indeed, the test for determining whether a judgment is final or interlocutory is whether or not the judgment finally determines the rights of the parties: Hall v Nominal Defendant (1966) 117 CLR 423 at 439 (Taylor J) and 443-444 (Windeyer J); Licul v Corney (1976) 180 CLR 213 at 225; Blair v Curran at 332. Interlocutory orders and determinations, by their very nature, are not final in character: Windsor v Sydney Medical Service Co-operative Ltd (No 2) [2009] FCA 704 at [25]. It has been held that they are therefore "insufficient to create an issue estoppel": Windsor at [25]; Wilson v Union Insurance Co (1992) 112 FLR 166 at 181. As McClelland J put it in Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44 at 46, "[i]nterlocutory orders, of their very nature, create no res judicata or estoppel, and the court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings". 81 Nothing said in Ainslie, Somodaj or Kuligowski suggests that an interlocutory order can somehow be considered to be final for the purposes of the application of the principles of res judicata or estoppel. Indeed, the test for a "final decision" in Somodaj and Kuligowski would appear to expressly exclude decisions of an "interlocutory character". There is nothing to suggest that the decisions in question in Ainslie, Somodaj and Kuligowski were interlocutory decisions. The reason that the relevant decision in Ainslie, relating to the ongoing payment of an adjustable weekly sum (at 389), was considered not to be final was because it was not completely effective; something more needed to be done before it could be enforced or was enforceable. The issue in both Somodaj and Kuligowski was that, while the decisions in question were completely effective and finally determined the rights of the parties, the relevant legislation provided that the decision-maker could subsequently rescind, alter or amend the decision. It was held, in both cases, that the mere fact that the legislation provided that the otherwise effective, final and enforceable decisions could subsequently be rescinded, altered or amended did not mean that they were not final in nature for the purposes of estoppel or res judicata. 82 The second difficulty is that, at least for the purposes of determining whether an appeal from the judgment is as of right, or only by leave, the question whether a judgment finally determines the rights of the parties must generally be determined having regard to the "legal rather than the practical effect of the judgment": Carr v Finance Co of Australia Ltd (1981) 147 CLR 246 at 248; Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8; [2018] HCA 51 at [11]; Computer Edge Pty Ltd v Apple Computer Inc. (1984) 54 ALR 767 at 768. The question is whether the judgment "finally determines, in a legal sense, all the rights of the parties that are in issue in the proceedings": Brouwer at 242. J.P. Morgan's reliance on the practical effect of the magistrate's decision, had the decision been adverse to it, would appear to be misplaced. 83 There is, however, a line of authority (not adverted to by any of the parties) which would suggest that the cases which consider the question of the finality of a judgment for the purposes of determining appeal rights may not apply, or may be of limited assistance, when it comes to addressing the element of finality for the purposes of determining whether the judgment may give rise to an issue estoppel. Indeed, that line of authority tends to indicate that, in determining whether a judgment is final for the purpose of determining whether it may give rise to an issue estoppel, the fact that the judgment is interlocutory may be relevant, but it is not determinative, and the real question is whether the judgment can properly or reasonably be regarded as a final determination of the issue between the parties: Carl Zeiss at 910; Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 at 43; Makhoul v Barnes (1995) 60 FCR 572 at 582-583; Santos v Delphi Petroleum Pty Ltd [2002] SASC 272 at [390]-[400]; Inasmuch Community Inc v Bright [2006] NSWCA 99 at [60]; Castillon v P & O Ports Limited (No. 2) [2008] 2 Qd R 219; [2007] QCA 364 at [52]-[58]. 84 The issue is not entirely easy to resolve. There appears to be an element of circularity in respect of the issue and the test which has been proposed in the authorities is somewhat elusive and question-begging. Be that as it may, even accepting that in some circumstances an interlocutory decision may nonetheless be considered to be final for the purposes of determining whether it may give rise to an issue estoppel, and even accepting that the relevant test is whether the judgment can properly or reasonably be regarded as a final determination of the issue between the parties, I am not persuaded that the magistrate's decision in this matter could properly or reasonably be regarded as a final determination of the question whether the unredacted WPP documents are privileged from production. That is so for a number of reasons. 85 First, I do not consider that it is appropriate to consider the question of finality from the perspective of the practical effect of the decision had it been determined adversely to J.P. Morgan and the objection to production dismissed. Rather, the question must be approached from the perspective of what was actually decided, which was that ss 131 and 131A of the Evidence Act (NSW) applied to the documents and the objection to production by J.P. Morgan and ASIC was upheld. 86 Second, as just noted, the magistrate's decision was unquestionably based on the application of s 131 of the Evidence Act (NSW). It follows that, at the very most, the decision may have finally determined the issue, as between ANZ, on the one hand, and the ACCC, ASIC and J.P. Morgan on the other, concerning the application of s 131 of the Evidence Act (NSW) to the documents in question in the specific context of the objection to production of those documents pursuant to the subpoena issued by the Local Court of New South Wales at the request of ANZ. It cannot be accepted that the decision finally or conclusively determined any broader issue as between the parties. In particular, it cannot be accepted that the decision finally and conclusively determined that J.P. Morgan and ASIC can resist production of the unredacted WPP documents on the basis that they are privileged, even if the requirement to produce arises in the context of a different subpoena, in a different court and in circumstances where s 131 of the Evidence Act (NSW) does not apply. That is not what the magistrate decided. 87 Third, it is not even entirely clear that the magistrate's decision finally and conclusively determined the issue between the parties in respect of the production of the documents in the Local Court. As the decision was unquestionably an interlocutory decision, it would have been open to ANZ to apply to have the magistrate revisit, set aside or vary the decision. Any such application would be unlikely to be successful if the facts and circumstances had not changed. If they had, however, it would have been open to the magistrate to set aside her earlier decision and overrule the objection to production. For example, if the circumstances changed such that one of the exceptions in s 131(2) was engaged, it would have been open to ANZ to call on the subpoena again, or call on a new subpoena in the same terms, and argue that the documents were no longer protected from production by ss 131 or 131A of the Evidence Act (NSW). 88 In all the circumstances, the relevant decision by the magistrate could not be said to have finally determined, in any relevant sense, all of the rights of the parties that were in issue in the committal proceedings. At most, it determined, on an interlocutory basis, that ASIC and J.P. Morgan, who were not parties to the committal proceedings, had the right to object to the production of the unredacted WPP documents pursuant to the subpoena issued at the request of one of the parties to the proceedings, ANZ, on the basis of the application of s 131 of the Evidence Act (NSW). The decision could not be said to have determined, let alone finally and conclusively determined, that the unredacted parts of the documents were privileged from production in any other circumstances, including in a different court, pursuant to a different subpoena and in circumstances where s 131 of the Evidence Act (NSW) did not apply. 89 The doctrines of res judicata and estoppel accordingly cannot apply to the decision of the magistrate so as to preclude or prevent ANZ from calling on the subpoena issued by this Court which seeks production of the unredacted WPP documents.

[13]

No identity of issues or rights determined and to be determined 90 The third issue concerning the application of the doctrines of res judicata or estoppel to the circumstances of this case concerns whether there is sufficient identity between the issues of fact and law, or the rights or obligations, determined by the magistrate and the issues of fact and law, or the rights or obligations, to be determined in the context of the subpoena dispute in this proceeding. This issue overlaps to a large extent with the issues just discussed in the context of the element of finality. 91 Even accepting that "substantial correspondence" (cf Clayton v Bant at [34]) may suffice, it is difficult to accept that the issues or rights determined by the magistrate substantially correspond to the issues or rights in play in this Court. That is essentially because the question whether the unredacted WPP documents were required to be produced in the Local Court was to be determined on the basis of the application of ss 131 and 131A of the Evidence Act (NSW), whereas the issue in this Court is to be determined by reference to the common law principles relating to without prejudice privilege. 92 The Evidence Act (NSW) does not apply in proceedings in this Court. Rather, the Evidence Act (Cth) applies. While s 131 of the Evidence Act (Cth) is in relatively identical terms to s 131 of the Evidence Act (NSW), there is no equivalent to s 131A of the Evidence Act (NSW) in the Commonwealth Act. Section 131A of the Evidence Act (Cth) is in substantially different terms and does not apply to the issues raised in this matter. In this Court, the question whether production of documents which disclose communications relating to settlement negotiations can be required to be produced is to be determined by reference to common law principles. That was essentially common ground between the parties. 93 J.P. Morgan submitted that there was nevertheless substantial correspondence between the issues and rights determined by the magistrate and the issues to be determined in this Court in respect of the production of the WPP documents. That was said to be because the elements required to attract protection against production by reason of ss 131 and 131A of the Evidence Act (NSW) substantially correspond with the elements required to attract protection pursuant to the common law principles of without prejudice privilege. 94 For the reasons given in more detail later, that submission must be rejected. In short, for a document to be protected from production by common law without prejudice privilege, there must be some relevant connection between the dispute or proceeding which was the subject of the settlement negotiations and the proceeding in which the privilege is sought to be invoked. There is no equivalent or corresponding requirement for s 131 of the Evidence Act (NSW) to be engaged.

[14]

Conclusion in relation to res judicata and estoppel 95 Res judicata and estoppel cannot apply to the magistrate's determination because it was an interlocutory order or determination, not a final order or determination. There is also insufficient identity between the issues and rights determined by the magistrate and the issues and rights for determination by this Court in respect of the relevant subpoenas. 96 It should finally be noted that there is an element of futility in J.P. Morgan's attempt to engage the doctrines of res judicata and issue estoppel in respect of the subpoenas issued by the Court. That is because Deutsche Bank has foreshadowed that, if J.P. Morgan's claim of res judicata and estoppel is upheld and the subpoenas issued at the request of ANZ are set aside on that basis, it will request the issue of subpoenas to the ACCC and ASIC in the same terms. As adverted to earlier, it could not seriously be contended that Deutsche Bank, or any of the accused other than ANZ, could be estopped or otherwise precluded from requesting the issue of subpoenas to the ACCC and ASIC which call for the production of the WPP documents. Nor would there be any basis to set aside any such subpoenas, or estop the accused from contending that the WPP documents are not properly the subject of any claim of without prejudice privilege. 97 While the committal proceedings before the magistrate involved each of the accused, the accused each faced separate charges. The committal proceedings in respect of the separate charges against the accused were heard together as a matter of convenience. The accused were not, strictly speaking, all parties to the one proceeding. Perhaps more significantly, the relevant subpoenas were issued at the request of ANZ alone. ANZ alone adduced evidence and made submissions in opposition to the privilege claims by ASIC and J.P. Morgan. There could be no suggestion that ANZ was the "privy" of the other accused, or vice versa, in respect of the subpoenas: cf Ramsay at 276. The other accused were not at that time seeking or claiming production of the WPP documents "under or through" ANZ: cf Ramsay at 279; Tomlinson at [17]. It follows that even if, contrary to the conclusion that has been reached, ANZ was somehow estopped from either requesting the issue of the subpoenas, or calling on the subpoenas, to the ACCC and ASIC in this Court as a result of what occurred in the Local Court, the other accused are plainly not precluded from requesting the issue of, or subsequently calling on, subpoenas in the same terms as the subpoenas issued at the request of ANZ in this Court.

[15]

Are the subpoenas in this Court an abuse of process? 98 The only basis upon which J.P. Morgan contended that the subpoenas were an abuse of process was that, in calling on the subpoenas, ANZ was seeking to relitigate the same issues concerning without prejudice privilege that were determined by the magistrate at the committal stage. J.P. Morgan contended that it would be "unjustifiably vexatious and oppressive" for ANZ to "litigate anew a case which has already been disposed of by earlier proceedings": cf Walton v Gardiner at 393. 99 J.P. Morgan relied on the fact that a subpoena was set aside on this basis in somewhat analogous circumstances in Howell v O'Brien [2009] NSWSC 538. It submitted, by reference to the list of potentially relevant circumstances identified in Stenhouse, referred to earlier, that: the question of whether without prejudice privilege attaches to the WPP documents was both central to the question before the magistrate and to the issue before this Court; ANZ had "every opportunity" to litigate this issue to its conclusion in the Local Court; ANZ took no step to challenge the magistrate's upholding of the objection to production of the WPP documents; it would be oppressive to require J.P. Morgan and ASIC to relitigate the privilege issue in this Court; permitting ANZ to relitigate the issue "may well serve to undermine public confidence in the administration of justice"; and no fresh evidence or issue has been identified by ANZ in this Court. 100 It is perhaps not difficult to understand why J.P. Morgan, who is not a party to this proceeding, may feel somewhat aggrieved at having to again ventilate its without prejudice privilege claim in respect of the WPP documents. In all the circumstances, however, it cannot, on balance, be accepted that it is an abuse of process for ANZ to call for the production of the WPP documents pursuant to subpoenas issued in this Court. It is unfortunate that time and expense was in effect wasted in the Local Court dealing with this issue. That, however, says more about the relative inutility and inappropriateness of complex federal prosecutions being subject to outdated committal processes in lower state courts than it does about oppression or vexation. 101 The following considerations are particularly relevant to the question whether it is an abuse of process for ANZ to again seek production of the WPP documents in the face of the without prejudice privilege claims by ASIC and J.P. Morgan. 102 First, ANZ faces serious criminal charges. It is entitled to avail itself of every reasonable opportunity to defend those charges. 103 Second, ANZ has demonstrated that it has a legitimate forensic purpose in seeking production of the unredacted WPP documents in its defence of the charges. It is unnecessary to rehearse that forensic purpose in the context of this application, particularly given that neither ASIC nor J.P. Morgan advanced any, or any persuasive, submission that there was no legitimate forensic purpose. It suffices to say that ANZ has foreshadowed that it will apply for a permanent stay of the charge against it on the basis of what it will contend were improper or inappropriate dealings between the ACCC, ASIC and J.P. Morgan preceding the decision, ultimately made by the Director, to indemnify J.P. Morgan and some of its officers. It is understood that ANZ also proposes to contend, in effect, that the evidence of J.P. Morgan officers who will be called in the trial has in some way been tainted by those dealings. It may be accepted, at least for the purposes of this application, that the WPP documents may be adjectivally relevant in establishing the relevant factual matrix that would appear to underlie ANZ's contentions to that effect. 104 Third, it may also accordingly be accepted that the issue concerning the production of the WPP documents and the resolution of the claim of without prejudice privilege is an important issue in respect of ANZ's defence of the serious criminal charges against it. 105 Fourth, with no disrespect whatsoever intended, it is difficult to avoid the conclusion that the issue concerning without prejudice privilege in respect of the WPP documents was not given the considered attention it deserved in the Local Court. It is readily apparent from the transcript of the magistrate's decision that her Honour made the decision under considerable time and resource constraints. The decision appears to have been made in the context of a barrage of procedural or interlocutory disputes between the parties. The magistrate was bombarded with lengthy affidavit evidence and written submissions. Much of the written material appears to have been, with respect, somewhat unhelpful. Be that as it may, the magistrate herself conceded, on 7 February 2020, perhaps overgenerously, that her oral ruling was not a "comprehensive decision that could really do justice to the detailed written submissions". It is also readily apparent that the magistrate approached the ruling on the basis that it was not final or determinative. She opined, in that regard, that the matter was "passing through the local court on its way to trial in the federal court where of course all this will no doubt be agitated again". The key aspects of the magistrate's reasoning concerning the application of s 131 of the Evidence Act (NSW) were outlined earlier. Some of the reasoning is, with respect, somewhat difficult to comprehend. It does not appear that her Honour considered that it was necessary to inspect the relevant documents. 106 Fifth, for the reasons given earlier in the context of res judicata and estoppel, there could be no doubt that the magistrate's determination was interlocutory and not final. 107 Sixth, as has already been adverted to, the issue ultimately determined by the magistrate was not precisely the same as the issue that falls for consideration in this Court. The magistrate ultimately accepted J.P. Morgan's contention that the objection was to be determined on the basis of the application of ss 131 and 131A of the Evidence Act (NSW). It is common ground that the issue concerning the objection to the production of the WPP documents in answer to the subpoenas in this Court is to be determined in accordance with the common law principles concerning without prejudice privilege. As explained in more detail later, those common law principles differ in some material respects from the applicable elements for objection to production based on ss 131 and 131A of the Evidence Act (NSW). 108 Seventh, while J.P. Morgan was put to the trouble and expense of preparing written evidence and submissions and appearing in the Local Court, it is difficult to accept that it would be relevantly oppressive or vexatious for it to be required to again address the issue concerning the production of the WPP documents in this Court. The argument in the Local Court was heard over the course of two days. The argument in this Court was also heard over two days, though most of that time was taken up dealing with the issues concerning res judicata, estoppel and abuse of process. The argument concerning without prejudice privilege itself was not extensive. The issue was determined on the basis of relatively uncontentious affidavit evidence. There was no cross-examination. 109 Eighth, J.P. Morgan was not, itself, the subpoenaed party. The subpoenaed parties, the ACCC and ASIC, did not contend that they were in any way oppressed or vexed by having to respond to the subpoenas again in this Court. While ASIC maintained its objection to the WPP documents on the basis of without prejudice privilege, it did not contend that the subpoena served on it was oppressive or vexatious, or that it was oppressed by having to again make a claim of without prejudice privilege. It did not seek to have the subpoena set aside as an abuse of process. Nor, it might be added, did it actively support J.P. Morgan's contentions concerning res judicata and estoppel. 110 Ninth, nothing in particular turns on the fact that ANZ did not seek to challenge the magistrate's determination concerning production. To challenge that decision, ANZ would have been required to seek prerogative relief in the Supreme Court of NSW or apply for leave to appeal to the Supreme Court on a question of law alone pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW). That would have simply led to a further and unacceptable delay in the determination of the committal proceedings. The time engaged in any appeal or application for review of the magistrate's decision would also probably have been equivalent to the time engaged in ventilating the arguments concerning production of the WPP documents in this Court. Indeed, it is likely that the judge who heard any appeal or review application in respect of the magistrate's decision would have queried whether it would be more appropriate to raise the matter again in the trial proceedings in this Court. That consideration may also have led the presiding judge to refuse prerogative relief on discretionary grounds, or to refuse to grant leave to appeal. 111 Tenth, it is extremely doubtful that it could be said that the public confidence in the administration of justice would or could be undermined in any material respect by permitting ANZ to call on the subpoenas in this Court and thereby raise again the issue of whether the ACCC and ASIC are entitled to object to production of the WPP documents. It could not be said to be entirely unusual for issues ventilated in committal proceedings to be ventilated again at the trial stage upon committal. While public confidence in the administration of justice may well have been undermined by what appears to have been the unacceptable, unwarranted and wasteful delays which resulted from the committal proceedings in this matter, that is another matter altogether.

[18]

RELEVANT PRINCIPLES - WITHOUT PREJUDICE PRIVILEGE 114 As the subpoenas are not to be set aside, the next issue is whether the objection by ASIC and J.P. Morgan to production of the unredacted WPP documents should be upheld. As already noted, the objections are to be considered and determined on the basis of the common law principles of without prejudice privilege, as s 131 of the Evidence Act (Cth) only applies to the adducing of evidence of settlement negotiations, not at the stage of the production of documents evidencing or disclosing settlement negotiations. 115 The common law principles concerning without prejudice privilege were recently summarised in the following terms in Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 (at [51]-[54]): "Without prejudice" privilege excludes from evidence "admissions by words or conduct made by parties in the course of negotiations to settle litigation": Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 at 291. It applies to "all negotiations genuinely aimed at settlement": Rush and Tompkins Ltd v Greater London Council [1989] 1 AC 1280 at 1299. Documents containing or disclosing such communications are also not discoverable: Rush and Tompkins at 1305; Bailey v Beagle Management Pty Ltd [2001] FCA 185 at [17]-[18]; Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411 at 416. It appears to be accepted that without prejudice privilege extends to communications aimed at settling disputes that take place before litigation has begun: Barnetson v Framlington Group Ltd [2007] 1 WLR 2443 at [27]-[28]; Bradford & Bingley plc v Rashid [2006] 1 WLR 2066 at [81]. In Barnetson, Auld LJ (with whom Longmore and Toulson LJJ agreed) observed (at [33]-[34]) that while the "ambit of the rule should not be extended any further than is necessary in the circumstances of any particular case to promote the public policy interest underlying it", the "claim to privilege cannot … turn on purely temporal considerations". Rather, the "critical feature of proximity for this purpose … is one of the subject matter of the dispute rather than how long before the threat, or start, of litigation it was aired in negotiations between the parties". In Dowling v Ultraceuticals Pty Ltd (2016) 93 NSWLR 155, however, the scope of the privilege was couched in terms of whether litigation between the parties was "in contemplation" (at [25]). It is also clear that the "the privilege extends to cover disclosure to third parties in a subsequent dispute provided there is sufficient connection between the subject matter of the original dispute and the later one": Dowling at [28]; Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 at [18]-[20] and [35]. As for the scope of this extension to the privilege, the required connection has been expressed in various ways. In Yokogawa Australia Pty Ltd v Alstrom Power Ltd [2009] SASC 377; 262 ALR 738, it was said that "the privilege should apply in a case … where the litigation has a connection with the same subject matter as the negotiations" (at [83] and [139]). In Dowling, Hammerschlag J expressed the view (at [35]) that the "assessment of whether there is sufficient connection between two disputes, to justify extension of the privilege to the second, should be made by reference to whether or not the policy (which did or would have protected the documents from disclosure in the first dispute) will be served by extending the privilege to the second dispute in the particular circumstances of the case". That led his Honour to conclude (at [37]) that "the Court must assess whether the party resisting disclosure would have had a legitimate expectation that the material brought into existence for the purposes of settling the earlier dispute would not be used against it in the later dispute". 116 The main point of contention between the parties, at least insofar as the principles are concerned, relates to whether, for the privilege to apply, there must be a relevant or sufficient connection between the dispute which was the subject of the settlement negotiations and the subsequent dispute in which documents that disclose the earlier negotiations are sought to be disclosed.

[20]

The alleged dispute and settlement negotiations - evidence 119 ASIC relied, in support of its without prejudice privilege claim, on affidavit evidence of Ms Rayma Gupta, who is a legal practitioner employed by ASIC currently occupying the position of Senior Specialist in the Civil Litigation Team. Objection was taken to parts of Ms Gupta's principal affidavit, which was sworn 22 April 2021, on the basis that the evidence amounted to bare assertion or conclusion. That objection was overruled and the evidence was admitted. While there was certainly an element of assertion or conclusion in parts of Ms Gupta's affidavit, that deficiency largely went to the weight that could or should be given to Ms Gupta's evidence, as opposed to its admissibility. 120 ASIC initially sought to rely on what was said to be a confidential affidavit of Ms Gupta. It was indicated that ANZ and its lawyers were not to be given access to that affidavit because it revealed information which was itself said to be subject to without prejudice privilege. Objection was taken to ASIC's reliance on the affidavit in those circumstances. After some debate during the hearing, ASIC withdrew any reliance on the confidential affidavit and instead relied on a supplementary affidavit of Ms Gupta sworn 27 May 2021 that did not reveal any privileged information. 121 Ms Gupta was not cross-examined and, save for the objection referred to earlier, her evidence was not challenged. 122 Ms Gupta's evidence was that on 1 March 2016, ASIC commenced an investigation into suspected contraventions of various provisions of the Corporations Act arising from an institutional share placement for $2.5 billion in ANZ shares announced on 6 August 2015. It should be noted that the criminal charges against ANZ and the other accused also arose from conduct that occurred in the context of that share placement. As discussed in more detail later, however, the focus of ASIC's investigation would appear to have been materially different to the focus of the investigation by the ACCC which culminated in the laying of the charges against the accused. 123 Ms Gupta was assigned to provide advice and assistance, as a senior lawyer, in relation to the relevant investigation by ASIC from about mid-June 2018. Copies of the redacted versions of the WPP documents, which were in evidence, indicate that most of the relevant discussions between officers of ASIC, J.P. Morgan's lawyers and officers of the ACCC which are the subject of the without prejudice privilege claim occurred during the period from September to November 2017. It follows that Ms Gupta's direct involvement in the matter post-dated the discussions or negotiations between ASIC and J.P. Morgan which are said to be disclosed in the WPP documents. 124 Before dealing with Ms Gupta's evidence about those discussions, or the documents that are said to reveal privileged aspects of the discussions, it should be noted that, on 14 September 2018, ASIC commenced civil penalty proceedings in this Court against ANZ for an alleged breach of s 674(2) of the Corporations Act. That section imposes continuous disclosure obligations on certain listed entities, the failure to comply with which may give rise to a civil penalty or criminal liability. The civil penalty proceeding against ANZ was stayed pending the determination of the criminal proceedings against, relevantly, ANZ: Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (2019) 138 ACSR 42; [2019] FCA 964. 125 Ms Gupta's evidence was that ASIC's investigation concerning the share placement continued after ASIC commenced the proceeding against ANZ. In particular, ASIC continued to investigate the conduct of the joint lead managers of the share placement, being J.P. Morgan, Citigroup and Deutsche Bank. It was not until March 2021 that ASIC decided not to take any enforcement action against J.P. Morgan, Citigroup and Deutsche Bank. 126 Ms Gupta's supplementary affidavit, which was read in lieu of her confidential affidavit, provided further detail in relation to ASIC's investigation. It is unnecessary to detail that information. It suffices to note that ASIC was primarily investigating the disposal of ANZ shares by J.P. Morgan, Citigroup and Deutsche Bank on the morning of 7 August 2015. According to Ms Gupta, ASIC suspected that J.P. Morgan, Citigroup and Deutsche Bank had disposed of ANZ shares on that morning while in possession of "inside information" relating to their shareholding in ANZ. ASIC was also investigating the entry of bids into what was referred to as the "book build" conducted during the share placement. In particular, Ms Gupta's evidence was that ASIC suspected that the entry by J.P. Morgan of a $30 million bid, as part of the book build, may not have been a "genuine bid", but rather one that was "made for the sole or dominant purpose of completing the coverage of the book". Ms Gupta's evidence was that ASIC was investigating whether the conduct of J.P. Morgan, Citigroup and Deutsche Bank in relation to the "book build" contravened various provisions of the Corporations Act or the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). 127 Ms Gupta's evidence was, in substance, that the parts of the WPP documents that are the subject of the without prejudice privilege claim concern "an attempt to negotiate a settlement of a dispute" between ASIC and J.P. Morgan "arising out of ASIC's investigation" into the ANZ share placement. According to Ms Gupta's evidence, "ASIC and J.P. Morgan had confidential discussions in an attempt to negotiate a settlement relating to potential contraventions of the Corporations Act and ASIC Act by J.P. Morgan". Those discussions commenced in July 2017. The documents in respect of which privilege was claimed were said to be "file notes which record discussions between ASIC and the ACCC, or the ACCC and [J.P. Morgan's lawyers] Gilbert and Tobin, which relate to the negotiations between ASIC and J.P. Morgan in relation to the Dispute". 128 Ms Gupta's evidence concerning the dispute and the negotiations relating to it was less than satisfactory. As ANZ contended, it did not rise much beyond bare assertion and was largely conclusory in nature. That said, read in conjunction with the balance of Ms Gupta's evidence concerning ASIC's investigation and the unredacted versions of the WPP documents which were in evidence, the evidence was sufficient to establish, at least to a prima facie level, that the redacted parts of the WPP documents revealed details of discussions between representatives of ASIC and J.P. Morgan concerning a potential negotiated resolution of ASIC's investigation into potentially contravening conduct by J.P. Morgan. It may, in all the circumstances, be inferred that it was contemplated by both ASIC and J.P. Morgan at the time of the discussions that ASIC's investigation, if not settled or otherwise compromised, may well have resulted in enforcement action or litigation by ASIC. At the very least, Ms Gupta's evidence provided a sufficient basis for the Court to inspect the unredacted versions of the WPP documents. The parties did not object, or submit that it was inappropriate, for the Court to inspect the unredacted versions of the WPP documents in the circumstances.

[21]

The WPP documents 129 Following is a short summary of the nature and content of the 10 WPP documents, obviously not including any substantive detail concerning the redacted parts of the documents over which privilege is claimed. 130 Document 1 (1000791.027.001.0003 / ZIG.0007.0006.1039) is a handwritten file note made by an ACCC officer recording details of a telephone conference call between ACCC lawyers and one of J.P. Morgan's lawyers from Gilbert + Tobin on 25 September 2017. Two other ACCC officers attended the conference call. No ASIC officer participated in the call. J.P. Morgan's lawyer is recorded as having requested the call to "inform the ACCC about the progress of the ASIC investigation". The redacted part of the document includes some general detail concerning ASIC's investigation and some, albeit fairly limited, detail concerning a possible or proposed means of resolving any enforcement action by ASIC which might otherwise result from the investigation. 131 Document 2 (1000791.027.001.0331 / ZIG.0007.0006.1037) is a handwritten file note made by another ACCC officer recording the details of the same conference call made on 25 September 2017. The redacted part of the document contains some general information about ASIC's investigation and some very general detail of discussions between ASIC and J.P. Morgan or its lawyers, including in relation to a possible or proposed means of resolving any enforcement action which might otherwise result from ASIC's investigation into J.P. Morgan's conduct. 132 Document 3 (1000791.027.001.0063 / ZIG.0007.0006.1033) is yet another handwritten file note taken by one of the ACCC officers in respect of the conference call made on 25 September 2017. As with documents 1 and 2, the privileged part of the document refers to some general information concerning ASIC's investigation and a possible or proposed means of resolving any issues arising from that investigation. 133 Document 4 (1000791.027.001.0045 / ZIG.0007.0006.1030) is a handwritten file note made by an ACCC officer of a discussion between another ACCC officer and an ASIC officer on 3 October 2017. The redacted part of the document includes some general detail of discussions apparently between ASIC and J.P. Morgan's lawyers, including a possible or proposed means of resolving any enforcement action which might otherwise result from ASIC's investigation. 134 Document 5 (1000791.027.001.0050 / ZIG.0007.0006.1032) would appear to be an incomplete copy of document 4. 135 Document 6 (1000791.015.006.6000 / ZIG.0007.0006.1003) is a copy of a print version of an email between officers of the ACCC. It recites some detail of the ACCC officer's file notes of "recent ASIC conversations". One of the file notes referred to in the email would appear to be the file note which comprises document 4. The unredacted parts of the email record some details of ASIC's investigation. The redacted parts of the email include some general information about a possible or proposed means of resolving any issues arising from the investigation insofar as J.P. Morgan was concerned and the negotiations relating thereto. 136 Document 7 (1000791.02.001.0330 / ZIG.0007.0006.1023) is a handwritten file note of an ACCC officer recording a discussion with two lawyers from Gilbert + Tobin on 2 November 2017. The redacted part of the file note includes some general information about ASIC's investigation and what was being discussed as a possible or proposed means of resolving any action which might be taken against J.P. Morgan as a result of the investigation. 137 Document 8 (1000791.027.001.0391 / ZIG.0007.0006.1024) is a handwritten file note made by another ACCC officer recording the same discussions as those recorded in document 7. The redacted part of the note records an issue concerning the possible means of resolving ASIC's investigation in relation to J.P. Morgan which had been the subject of discussion. 138 Document 9 (1000791.027.001.0328 / ZIG.0007.0006.1021) is the same as document 7. 139 Document 10 (1000791.027.001.0085 / ZIG.0007.0006.1040) comprises two handwritten file notes made by an ACCC officer. The first file note records a discussion between an ACCC officer and an ASIC officer on 2 February 2018. The redacted part of this note includes some very general information about a proposed resolution of ASIC's investigation insofar as J.P. Morgan was concerned. The second file note records a discussion between officers of the ACCC and officers of ASIC on 8 February 2018 which again touch, in very general terms, on the possible or proposed resolution of ASIC's investigation in relation to J.P. Morgan. 140 The following points emerge from the inspection of the unredacted versions of the WPP documents. 141 First, all of the documents, other than documents 4 to 6, and 10, directly or indirectly record discussions between an ACCC officer or officers and a lawyer or lawyers acting for J.P. Morgan. Documents 4 to 6, and 10, record discussions between officers of the ACCC and ASIC. It follows that the documents over which privilege was claimed do not contain any direct or first-hand record of any negotiations or discussions between ASIC and J.P. Morgan or their representatives. At most they record a second-hand summary of the negotiations or discussions. 142 Second, the documents do record some information, albeit very high-level and general information, concerning ASIC's investigation into the conduct of J.P. Morgan and some equally general and high-level information about what had apparently been discussed between ASIC and J.P. Morgan about a possible or proposed means of resolving any potential enforcement action against J.P. Morgan which might otherwise result from ASIC's investigation. It may be inferred from the content of the documents that, at the time the discussions between representatives of ASIC and J.P. Morgan occurred, it was contemplated by ASIC and J.P. Morgan that, if not resolved by negotiation, the investigation may have resulted in enforcement action by ASIC, including litigation. 143 It follows that, while there may have been some merit in ANZ's submission that Ms Gupta's evidence concerning the existence of a dispute between ASIC and J.P. Morgan did not rise much higher than "verbal formulae and bare conclusory assertions" (cf Barnes v Commissioner of Taxation (2007) 242 ALR 601; [2007] FCAFC 88 at [18]), the documents themselves support Ms Gupta's evidence. ANZ also submitted that the fact that ASIC was conducting an investigation did not amount to a dispute. There again may be some merit in that submission, though the content of the WPP documents support the inference that there was a dispute between ASIC and J.P. Morgan, in the sense that it was in contemplation that ASIC's investigation may result in enforcement action, including potential litigation, against J.P. Morgan for alleged breaches of the Corporations Act and ASIC Act. 144 Third, while the documents include some information about ASIC's investigation and the discussions which had occurred between ASIC and J.P. Morgan about how any action which might arise from the investigation might be resolved, it is somewhat difficult to see how anything recorded in the documents could possibly be said to amount to an admission by words or conduct by either ASIC or J.P. Morgan. There certainly does not appear to be anything in the documents which could be said to be an admission by ASIC. As for J.P. Morgan, as has already been noted, the information concerning the discussions is expressed at a high level of generality and scarcely extends beyond recording that there had been discussions about a possible way of resolving ASIC's investigation. It is difficult to see how the mere fact that J.P. Morgan had discussed the possibility of resolving the investigation in that way could be said to be an implied, let alone express, admission of anything. It is, in short, difficult to see how the information recorded in the documents could be deployed against J.P. Morgan in any proceeding connected in any way with ASIC's investigation or any litigation which could arise from it. 145 It is at least questionable whether the communications recorded in or evidenced by the redacted portions of the WPP documents are protected by without prejudice privilege in circumstances where they could not be said to constitute or amount to express or implied admissions by either ASIC or J.P. Morgan. In Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285, the majority (Dixon CJ, Webb, Kitto and Taylor JJ) said as follows in relation to the nature of communications protected by without prejudice privilege (at 291-292): This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission. 146 The question whether without prejudice privilege only extends to protect express or implied admissions from disclosure was considered in Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276. Pincus JA (at [12]-[17]) appeared to accept that the scope of the privilege was so limited, but ultimately considered that it was unnecessary to decide the point because it was not suggested that any of the statements over which privilege was claimed could be relevant other than as admissions. Byrne J (at [33]-[41]), however, appeared to suggest that the privilege may not be limited to protecting admissions from disclosure. McMurdo P agreed with Pincus JA, but also expressed "general agreement" with the reasons of Byrne J (at [2]). In Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233; [2001] QCA 115 at [41], Williams JA (with whom McPherson JA and Ambrose J agreed) appeared to reject the proposition that the protection afforded by without prejudice privilege extended beyond admissions. 147 It is unnecessary in the circumstances of this case to determine whether the redacted portions of the WPP documents are outside the scope of without prejudice privilege because they do not appear to constitute express or implied admissions by either ASIC or J.P. Morgan. That is because, for the reasons that follow, without prejudice privilege does not apply to the WPP documents in the circumstances of this case in any event because this proceeding is not relevantly connected, or is insufficiently connected, to the dispute between ASIC and J.P. Morgan which was the subject of the allegedly privileged negotiations. 148 In some respects, however, these two issues - whether the statements made during the negotiations can be said to constitute admissions by either ASIC or J.P. Morgan and whether there is any relevant connection between this proceeding and the proceeding in which the negotiations occurred - are linked. The point is that there would appear to be no question, in the circumstances of this case, that any of the statements made during the negotiations that are revealed in the WPP documents could be used or tendered against either ASIC or J.P. Morgan in this proceeding, either as admissions or otherwise. ANZ also made it tolerably clear that it does not propose to tender evidence of any statement that may have been made by ASIC or J.P. Morgan during the negotiations as evidence of the truth of any asserted facts. Rather, it seeks to ascertain what was said during the discussions, in particular by officers of the ACCC, about the potential means of resolving ASIC's investigation into J.P. Morgan's conduct. The possible relevance in this proceeding of what is recorded in the redacted parts of the WPP documents is what, if anything, that evidence of the discussions reveals about the ACCC's involvement in the discussions concerning the potential resolution of ASIC's investigation.

[22]

A connection between the two disputes? 149 The critical issue concerning the applicability of without prejudice privilege to the WPP documents arises from the fact that neither ASIC nor J.P. Morgan are parties to the litigation in this Court. ASIC and J.P. Morgan might be said to be 'interested persons', at least in respect of the relevant ANZ subpoenas and the interlocutory applications by ASIC and J.P. Morgan which are the subject of this judgment, given they are persons affected by an order of the Court: see Sch 1 - Dictionary in the Rules. J.P. Morgan is otherwise involved in this proceeding only in the broad sense that, while not a party to the proceeding, it and some of its officers have been indemnified and some of its officers will be called to give evidence in the prosecutor's case. The prosecutor has also foreshadowed that an officer of ASIC will be called to give evidence. Moreover, while both ASIC's investigation and the ACCC's investigation which led to the criminal proceedings in this Court could be said to have arisen from the same underlying transaction, namely the ANZ share placement in 2015, ASIC's investigation concerned potential breaches of the Corporations Act and ASIC Act, whereas the proceedings in this Court involve alleged offences under the C&C Act. 150 Two questions arise in relation to the availability of without prejudice privilege in respect of the unredacted WPP documents in these circumstances. The first question is whether it is necessary, for without prejudice privilege to apply, for there to be some connection between the initial litigation or dispute which was the subject of the settlement negotiations and the subsequent litigation or dispute in which documents which disclose the content of the settlement negotiations are sought by subpoena. If there is a requirement for a connection, what is the nature of the required connection? The second question, which only arises if the first question is answered in the affirmative, is whether there is a sufficient connection in this case - whether the dispute between ASIC and J.P. Morgan which arose in connection with ASIC's investigation into J.P. Morgan's conduct is sufficiently connected to this proceeding to enable ASIC and J.P. Morgan to avail themselves of the privilege in respect of negotiations that occurred between them.

[23]

The need for a connection 151 It would appear that without prejudice privilege was initially thought to have been limited to the circumstance where parties to the litigation engaged in failed settlement negotiations and one of the parties sought to tender against the other party at trial admissions made by that party during the negotiations. In Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280, however, it was held that the privilege extended to the situation where two parties in multi-party litigation engaged in settlement negotiations and one of the other parties to the litigation subsequently sought production or disclosure of documents recording or evidencing those settlement negotiations. Lord Griffiths (with whom Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and Lord Goff of Chieveley agreed) concluded (at 1305) that "the wiser course is to protect 'without prejudice' communications between parties to litigation from production to other parties in the same litigation" and that "the general public policy that applies to protect genuine negotiations from being admissible in evidence should also be extended to protect those negotiations from being discoverable to third parties". 152 It would appear that Lord Griffith's reference to "third parties" was a reference to parties to the multi-party litigation who were not parties to the relevant settlement negotiations - that is, Lord Griffiths was "limiting the protection from production 'to other parties in the same litigation'": see Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 523; Glengallan at [34]. It would now appear to be broadly accepted, however, that the so-called "extension" of the privilege in Rush & Tompkins may also apply to preclude production of documents evidencing settlement negotiations to parties involved in different litigation, but only in circumstances where the litigation in which that disclosure is sought has a sufficient connection with the litigation in which the negotiations occurred: see Mercantile Mutual at [18]-[20] (Pincus JA) and [35] (Byrne J); Yokogawa Australia Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377 at [83]-[84] (Duggan J, with whom Sulan J agreed) and [139] (Kourakis J); Dowling v Ultraceuticals Pty Ltd (2016) 93 NSWLR 155; [2016] NSWSC 386 at [28]-[35]; NSW Ports at [53]-[54]. 153 The extension of the privilege is "squarely based on the policy underlying the privilege": Dowling at [35]; Mercantile Mutual at [35]. The policy underlying the privilege is to "encourage compromises by sparing the parties the embarrassment which might be caused to them if the negotiations fail and later their communications are liable to be put in evidence": Mercantile Mutual at [18], [29] and [39] (quoting Harrington v Lowe (1996) 190 CLR 311 at 323). The rationale for the privilege has also been said to be to encourage settlements and avoid the "damage that would be done to the conduct of settlement negotiations if solicitors thought that what was said and written between them would become common currency": Rush & Tompkins at 1305; Mercantile Mutual at [34]; Dowling at [36]. 154 In that context, in Dowling, Hammerschlag J concluded (at [35]) that the "assessment of whether there is sufficient connection between the two disputes, to justify extension of the privilege to the second, should be made by reference to whether or not the policy (which did or would have protected the documents from disclosure in the first dispute) will be served by extending the privilege to the second dispute in the particular circumstances of the case". That in turn led his Honour to conclude (at [37]) that the "court must assess whether the party resisting disclosure would have had a legitimate expectation that the material brought into existence for the purposes of settling the earlier dispute would not be used against it in the later dispute". 155 Both J.P. Morgan and ASIC submitted, in effect, that once the purpose or rationale of the privilege is accepted, there is no principled basis for why there must a sufficient connection, or indeed any connection, between the dispute in which the negotiations occurred and the subsequent litigation in which the privilege is claimed. The overall tenor of their submissions was that the connection requirement should effectively be dispensed with. J.P. Morgan orally submitted that "the door is left open" in Yokogawa (at [83]) to expanding without prejudice privilege to prevent disclosure to all third parties, as a "blanket" proposition. ASIC submitted that dispensing with the requirement of a sufficient connection would not only be consistent with the underlying rationale for without prejudice privilege, but would also avoid the difficulties that courts have had in articulating the appropriate test. 156 It may perhaps be accepted that there are some ambiguities and inconsistencies in the authorities in relation to the nature of the required connection between the litigation in which the disclosure of the negotiations is sought and the litigation in which the negotiations occurred. As Hammerschlag J noted in Dowling (at [34]), the "formulations [of the required connection] have included cases where the litigation has a connection, or a direct connection, with the same subject matter as the negotiations, cases where the negotiations and the litigation arise out of the same subject matter and the negotiations and settlement are of potential relevance to subsequent litigation, cases where the subject matter of the settlement discussions is substantially the same as the subject matter of the legal proceedings, and cases where the subject matter of the negotiation does not differ from that of the proceedings". With the greatest respect to his Honour, it is not entirely apparent to me that adding a new formulation based on the parties' legitimate expectations adds any real clarity to the connection requirement. 157 The difficulty for ASIC and J.P. Morgan, however, is that none of the authorities go so far as to suggest that the requirement of a sufficient connection can or should be effectively dispensed with. Nor would it be appropriate for a single judge of this Court, or indeed any other court, to further expand the scope of without prejudice privilege by, as ASIC submitted, "doing away with" the requirement altogether. There are also sound reasons why the privilege should not be extended any more than it needs to be. As Lord Griffiths observed in Rush & Tompkins (at 1300), it is important to balance "the public interest in promoting settlements and the public interest in full discovery between parties to litigation": see also Barnetson v Framlington Group Ltd [2007] 1 WLR 2443 at [33]. The privilege should also not be unnecessarily extended so as not to "create a new and very broad area of operation of the principle": Glengallan at [34]. Nor should the privilege be extended to the point where it might "encourage dishonesty, not candour, in settlement discussions" (Dowling at [45]), or where it might become a "cloak for dishonesty": Mercantile Mutual at [20] (Pincus JA). 158 In any event, it is difficult to accept that the policy or rationale underlying the privilege justifies extending its reach to preclude the production of documents evidencing negotiations in any subsequent proceedings, even if there is no connection between those proceedings and the proceedings in which the negotiations occurred. It may be accepted that the parties to a dispute would likely be inhibited from making admissions or statements in the course of settlement negotiations if they believed that documents recording those admissions or statements may subsequently be required to be produced, and may ultimately be able to be used against them, in related or connected proceedings. It is, however, highly doubtful that the negotiating parties would feel so inhibited on the basis that documents recording any such admissions or statements may be required to be produced in entirely unrelated or unconnected proceedings, in which they are not parties, in circumstances where there could be no question of the admissions or statements being used against them in those proceedings. Indeed, it is difficult to accept that the parties would be likely to even turn their minds to such a possibility. 159 ASIC also appeared to suggest that "doing away with" the connection requirement would be appropriate or desirable because it would bring the common law principles of without prejudice privilege into line with the operation of s 131 of the Evidence Act (Cth). Section 131 of the Evidence Act (Cth), which as noted earlier deals only with the inadmissibility of evidence of settlement negotiations, does not expressly include any requirement that the dispute or proceeding in which the settlement negotiations occurred be in any way connected with the proceeding in which evidence of the settlement negotiations was sought to be adduced. It may perhaps be accepted that it is somewhat anomalous that documents recording settlement negotiations in one set of proceedings may be required to be produced in subsequent unconnected proceedings because they are not protected by without prejudice privilege, yet those documents may nonetheless be inadmissible in the later proceedings by reason of s 131 of the Evidence Act (Cth). That anomaly, if indeed it is one, is something which should, if thought necessary, be addressed by legislative law reform, as it effectively has in the Evidence Act (NSW) by the terms of s 131A in that Act. 160 There is no support in the authorities for the contention by J.P. Morgan and ASIC to the effect that it is unnecessary for them to demonstrate that there is any connection, or any sufficient connection, between their past dispute, being the dispute in respect of which the settlement negotiations occurred, and this litigation in order to claim without prejudice privilege. The present state of the law is that the dispute in which the settlement negotiations were said to occur must be sufficiently connected with the subsequent litigation for the privilege to apply. If the test in Dowling is to be applied, that involves the Court assessing whether ASIC and J.P. Morgan would have had a legitimate expectation that the material brought into existence for the purpose of settling their dispute would not be required to be disclosed in the context of this proceeding.

[24]

A sufficient connection? 161 It may be accepted that there is, at least to some extent, an underlying factual connection between ASIC's past investigation into the conduct of ANZ, J.P. Morgan, Citigroup and Deutsche Bank and the charges that are the subject of this proceeding. That underlying connection is that both ASIC's investigation and the charges in this proceeding arose out of the ANZ share placement in 2015. There are, however, a number of features of the two disputes, as well as some other considerations, which point to a lack of any sufficient connection between them. 162 First, the two disputes involve ostensibly separate and distinct investigations by two different federal regulatory and investigatory bodies, ASIC and the ACCC. While the WPP documents themselves reveal that both ASIC and the ACCC were aware that the other was conducting an investigation in relation to conduct surrounding the ANZ share placement, and that there were communications between officers of the two bodies, there is no evidence to suggest that there was a joint investigation in any respect. 163 Second, ASIC's investigation related to suspected contraventions of provisions in the Corporations Act, whereas the ACCC's investigation, which ultimately led to the laying of the charges that are the subject of this proceeding, involved alleged contraventions of the C&C Act. The alleged wrongdoing was and is separate and distinct. ASIC's investigation had nothing to do with the allegations which are central to the charges in this matter. 164 Third, ASIC's settlement negotiations with J.P. Morgan apparently did not come to fruition and ultimately ASIC did not take any enforcement action against J.P. Morgan, or, for that matter, Citigroup or Deutsche Bank. ASIC's investigation into the conduct of those corporations has effectively concluded. There is no suggestion that the unredacted WPP documents, or any of the information in those parts of the documents that are the subject of the privilege claim, could be used against J.P. Morgan, or anyone else, in any proceeding against any party arising out of ASIC's investigation. 165 Fourth, needless to say, ASIC is not a party to this proceeding. More significantly, J.P. Morgan is not a party to this proceeding. Nor are any of its past or present officers. It may be accepted that J.P. Morgan is not entirely uninvolved in the proceeding, as it and some of its officers have immunities from prosecution and J.P. Morgan officers are expected to give evidence in the prosecutor's case. Be that as it may, there is no suggestion that the unredacted WPP documents, or any of the information in the redacted parts of those documents, will or may be tendered or used against J.P. Morgan or its officers in any relevant sense. There is nothing in the documents that could be said to be an admission and ANZ does not seek to rely on the documents as evidence of the truth of any asserted fact. As discussed earlier, the forensic purpose for which ANZ seeks production of the documents is said to be that they may shed light on the dealings between the ACCC and J.P. Morgan relating to the granting of indemnities. 166 In many respects, the last mentioned consideration is the most significant in considering whether there is any relevant connection between the relevant disputes in all the circumstances. The ASIC investigation has concluded and there is no suggestion that the allegedly privileged communications could be used or tendered against J.P. Morgan, or ASIC for that matter, in any proceeding arising from or relating to the ASIC investigation. More significantly, as neither ASIC nor J.P. Morgan are parties to this proceeding, there is no basis for inferring or concluding that, if required to be disclosed, the communications over which privilege is claimed could be relevantly tendered or used against ASIC or J.P. Morgan in this proceeding. 167 In all the circumstances, it cannot be accepted that there is a relevant or sufficient connection between the dispute between ASIC and J.P. Morgan, being the dispute in relation to which the allegedly privileged communications occurred, and this proceeding, so as to engage without prejudice privilege. It is not sufficient that there is a mere underlying factual connection arising from the fact that the conduct which was the subject of ASIC's investigation and the conduct which is the subject of the charges in this matter related in some way to the ANZ share placement in 2015. As discussed in detail earlier, the investigation by ASIC and the investigation by the ACCC which led to the charges in this matter related to different conduct and different suspected contraventions of different Acts. It cannot, in those circumstances, be accepted that there is any relevant connection between the subject matter of the dispute between ASIC and J.P. Morgan and the subject matter of this proceeding, or that the subject matter of the two disputes is substantially the same. 168 This conclusion is fortified if the 'legitimate expectation' approach espoused in Dowling is adopted. There is, in all the circumstances, no basis for finding or accepting that ASIC and J.P. Morgan would have had any expectation, at the time of their discussions, that communications for the purpose of settling their dispute would not or could not be required to be disclosed in the context of this proceeding, or any proceeding like it. Indeed, it is difficult to accept that officers of either ASIC or J.P. Morgan would have even turned their minds to the possibility that their communications would be sought to be disclosed in the context of a proceeding in which neither of them were parties and which did not concern the dispute which was the subject of their negotiations. 169 Moreover, even in the unlikely event that ASIC and J.P. Morgan may have turned their minds to the issue and had an expectation that their settlement negotiations would not be disclosed in this proceeding, or any proceeding like it, once they communicated aspects of their settlement negotiations to the ACCC, it is difficult to accept that any such expectation remained "legitimate". Indeed, in such circumstances, they may legitimately have expected that their disclosures to the ACCC concerning their negotiations may be relevant and may ultimately be required to be disclosed in these proceedings. 170 It follows that the unredacted portions of the WPP documents do not attract without prejudice privilege in the context of the subpoenas in this proceeding. While the communications disclosed in the redacted portions of the documents may have attracted the privilege if their production was sought in any proceeding arising out of the ASIC investigation, or any relevantly connected proceeding, this proceeding is not relevantly connected, or is insufficiently connected, with the ASIC investigation and the dispute between ASIC and J.P. Morgan in that context.

[28]

Principles 174 As the privilege claims are made in the context of pre-trial disclosure or inspection of documents, the common law applies, not the Evidence Act (Cth): Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at [16]-[28] and [64]. 175 There was no real dispute between the parties in relation to the applicable principles in relation to legal professional privilege. They were summarised in the following terms in NSW Ports (at [38]-[42] and [48]-[50]): Legal professional privilege protects a person from being compelled to produce documents or give information which would reveal communications between a client and their lawyer made for the dominant purpose of obtaining or providing legal advice, or the provision of legal services, including representation in pending or anticipated legal proceedings: Esso at [35]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at [9]. The first limb of legal professional privilege may conveniently be referred to as advice privilege, whereas the latter may be referred to as litigation privilege. A dominant purpose is a reference to "the ruling, prevailing, or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416. It is a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB Ltd v Cole (2006) 152 FCR 382 at [105]-[106]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively; however, evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Limited v Commissioner of Taxation (2004) 136 FCR 357 at [35]. It is the purpose of the communication at the time it was made that must be considered. The concept of legal advice in the context of advice privilege is fairly broad. It goes beyond formal advice as to the law, and extends to professional advice as to what a party should prudently or sensibly do in a relevant legal context, but does not extend to advice that is purely factual or commercial: Balabel v Air India (1988) Ch 317 at 323, 330; DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 at [45]; AWB at [100]. Where the relevant communication by the lawyer occurred in the context of a complex commercial transaction, it may not be "amendable to sharp division between what was advisory and what was merely administrative" (DSE at [22]) and it is necessary to recognise "the form and nature of advice in a practical day to day context": DSE at [45]; Archer Capital 4A Pty Ltd as trustee for Archer Capital Trust 4A v Sage Group plc (No 2) [2013] FCA 1098; 306 ALR 384 at [50]-[51]. This may be particularly significant where "in-house" or employed lawyers are involved, where it is "often practically impossible to segregate commercial activities from purely 'legal' functions": Seven Network Limited v News Limited [2005] FCA 142 at [38]; Archer Capital at [88]. Litigation privilege extends to protect from disclosure confidential communications passing between a client, their lawyer and third parties for the dominant purpose of use in or in relation to pending or anticipated proceedings: Commissioner of Taxation v Pratt Holdings Pty Ltd [2003] FCA 6; 195 ALR 717 at [39]; Pratt Holdings at [6]; AWB at [144]; Ensham Resources Pty Ltd v AIOI Insurance Company Ltd (2012) 209 FCR 1 at [51]; see generally Trade Practices Commission v Sterling [1979] FCA 33; 36 FLR 244 at 246; or to conduct or aid in the conduct of, litigation in reasonable prospect: Grant v Downs (1976) 135 CLR 674 at 677. Legal proceedings will be anticipated, in the context of litigation privilege, only where there is a "real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely than not": Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at [19]; Ensham at [55], [57]. The "real prospect of litigation" must obviously exist at the time of the relevant communication. …. Legal professional privilege may attach to confidential communications between an employer and its employed or "in-house" solicitor or counsel provided that the employer consulted the employed solicitor 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 The Commonwealth (1978) 163 CLR 54 at 100. The better view is that there is no separate requirement to prove that the in-house lawyer was acting independently of any pressure from his or her employer, or had any requisite measure of independence, so long as the in-house lawyer was acting in his or her professional capacity as his or her employer's lawyer and the communication otherwise meets the dominant purpose test: Archer Capital at [59]-[73]. The party claiming privilege bears the onus of proving the facts necessary to establish the relevant privilege, including that the communications or documents in question were made or created for the required dominant purpose. The existence of privilege will not "necessarily or conclusively [be] established by resort to any verbal formula or ritual": Grant v Downs at 689. Nor will it generally or necessarily be sufficient for a party merely to assert a claim for privilege or rely on an affidavit which asserts the purpose for which a document was brought into existence followed by a statement of the category of legal professional privilege to which the document is said to belong: National Crime Authority v S (1991) 29 FCR 203 at [31] (NCA v S); Kennedy v Wallace (2004) 142 FCR 185 at [13]-[17]. The evidence should be focused and specific: Barnes v Commissioner of Taxation [2007] FCAFC 88; 242 ALR 601 at [18]. A "bare or skeletal" claim, unsupported by evidence which enables the court to consider and make an informed decision about the correctness of the claim or whether it is supportable, will not suffice: NCA v S at [31]-[34]. The claimant must, by direct admissible evidence, set out the facts from which the court can consider whether the assertion or assertions concerning the purpose of the communication in respect of which privilege is claimed is properly made: Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [27]. The best evidence will be that given by the person whose purpose is in question: Hancock at [32]. The Court has the power to examine documents in respect of which a claim is made: Grant v Downs at 689. The preferable explanation of the Court's power to inspect the documents is that it exists not to facilitate proof by a claimant of the facts required to sustain the claim, but to provide a means of enabling a claim to be scrutinised and tested: Hancock at [31]. The essential purpose of inspecting the documents is "to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege": AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) (2006) 155 FCR 30 at [44(12)]. It is relevant to note, in this context, that "in many instances the character of documents the subject of the claim will illuminate the purpose for which they were brought into existence": Grant v Downs at 689. A party is not entitled to insist on the court inspecting the documents, it being a matter for the discretion of the judge, who will only do so if there is good reason: Hancock at [31], citing Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] KB 134 at 146, District Council of Mallala v Livestock Markets Ltd (2006) 94 SASR 258 at [30], Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 542.

[30]

The EOC paper 177 The first document is a paper which was prepared by officers of ASIC and presented to ASIC's Enforcement Oversight Committee (EO Committee) on 1 March 2021 (the EOC paper). Ms Gupta's evidence was that the EO Committee is one of ASIC's "specialist sub-committees" which provides guidance and support to various other ASIC committees, including the Enforcement Committee, being the committee which makes "strategic and/or significant enforcement decisions". The guidance provided by the EO Committee is generally based upon recommendations of the relevant "project team". Ms Gupta was one of the authors of the EOC paper, along with someone who was described as occupying the position of "Senior Specialist, Markets Enforcement" and another person who was described as a "Senior Lawyer, Markets Enforcement". Ms Gupta's evidence was that the purpose of the EOC paper was to "request guidance" from the EO Committee "on the recommendation that no further action be taken with respect to ASIC's ongoing investigation" into J.P. Morgan, Citigroup and Deutsche Bank in respect of suspected contraventions of the Corporations Act or ASIC Act arising from conduct related to the ANZ share placement. 178 The EOC paper included three attachments. Two of those attachments were written opinions or legal advices to ASIC by external counsel retained by ASIC: one dated 15 February 2019 and one dated 21 November 2020. ASIC claimed legal professional privilege in respect of those opinions or advices. That claim was ultimately not challenged or disputed by ANZ. In any event, they are plainly covered by advice privilege. It is accordingly unnecessary to say anything more about the privilege claims in respect of those two opinions or advices. The third attachment was a paper presented to the Enforcement Committee on 18 March 2019 (the EC paper). More will be said about that paper later. 179 ASIC did not claim legal professional privilege in respect of the entire EOC paper, although it did claim that privilege over the whole of its three attachments. The privilege claim over the EOC paper was limited to certain specified paragraphs and footnotes. In her affidavit, Ms Gupta gave a general description of the nature of each of the communications or items of information disclosed in the paragraphs and footnotes in respect of which privilege was claimed. With a few very minor exceptions, the paragraphs over which privilege was claimed either summarised instructions or information that ASIC provided to counsel for the purpose of obtaining advice, or summarised a communication with or from counsel in relation to the provision of advice, or summarised counsel's advice. The exceptions were, in the EOC paper: one footnote (footnote 2), which was said to identify "the subject matter of previous instructions sought from EC [Enforcement Committee] in relation to matters arising in the course of the ACCC's criminal proceedings in the Local Court of New South Wales"; the first sentence of paragraph 47, which was said to record "ASIC's investigation team's recommended next steps based on [counsel's] advice"; and the last sentence of paragraph 50, which was said to identify "the content of a communication between a third party and [ASIC's external solicitors] in connection with" the civil penalty proceedings that ASIC had commenced against ANZ. 180 ANZ did not make detailed submissions in relation to the legal professional privilege claims over parts of the EOC paper. Rather, it criticised Ms Gupta's evidence for generally lacking sufficient focus and specificity and invited the Court to inspect each of the documents over which privilege was claimed "to determine if ASIC has met its burden in respect of each (purportedly) privileged communication". 181 It was appropriate, in all the circumstances, for the Court to inspect the EOC paper with a view to scrutinising ASIC's legal professional privilege claims in respect of parts of that document. With one fairly minor exception, that inspection confirmed that the parts of the EOC paper over which legal professional privilege claims were made by ASIC were either privileged communications or disclosed the content of privileged communications or legal advice - they were made for the dominant purpose of obtaining or providing legal advice or requesting or providing legal services, or they disclosed the content of legal advice received by ASIC. The one exception is footnote 2, which simply identifies an "issue" which was "before" the Enforcement Committee. It does not identify any legal advice sought or given in respect of that issue, or disclose any other privileged communication. 182 It follows that, save for footnote 2, ASIC's legal professional privilege claim in respect of the EOC paper should be upheld. The legal professional privilege claims in respect of the advice or opinions of external counsel which are annexed to the EOC paper should also be upheld.

[31]

The EC paper 183 Ms Gupta's evidence was that she was the author of the EC paper in her capacity as a "Senior Lawyer assigned to the matter". The paper was "settled" by "Litigation Counsel" in the Chief Legal Office of ASIC. 184 Ms Gupta's evidence, which was not challenged, was that the main purpose of the paper was "to provide an update to the Enforcement Committee on Counsel's legal advice contained in the three attachments to the EC paper". Those three attachments were identified as written opinions or advices given to ASIC by external counsel dated 15 February 2019 (the same advice which was an attachment to the EOC paper), 26 November 2018 and 6 February 2019. As noted in respect of the advices from counsel attached to the EOC paper, ANZ ultimately did not contest ASIC's privilege claims in respect of the written opinions or advices of counsel. Ms Gupta's evidence was that an "incidental" purpose of the paper was to provide "an update about the related criminal proceedings commenced by the ACCC", but that only a very small part of the paper was directed to that issue. 185 While ASIC claimed legal professional privilege in respect of the entirety of the EC paper, Ms Gupta also identified the general subject matter or content of certain specified paragraphs of the paper in support of an alternative claim of privilege in respect of those paragraphs alone if the claim in respect of the entire document was not upheld. ANZ submitted that Ms Gupta's evidence to that effect amounted to a concession that the paper could be produced "partially redacted". That is not an entirely fair way to characterise Ms Gupta's evidence. ASIC made it clear that it maintained its claim of privilege in respect of the entirety of the document. Ms Gupta's evidence concerning the specific paragraphs of the EC paper was, in effect, that the bulk of the paper summarised the matters in respect of which ASIC's counsel had been requested to provide legal advice and summarised the legal advice that ASIC had received from counsel. The paper also included Ms Gupta's opinions about certain matters, as well as "in-house legal advice" provided to ASIC by the Chief Legal Office. 186 ANZ submitted that those paragraphs of the EC paper in respect of which Ms Gupta had not given specific evidence should be produced unredacted. Otherwise, ANZ again invited the Court to inspect the paper to scrutinise ASIC's claims concerning it. 187 It was again, in all the circumstances, appropriate for the Court to inspect the EC paper for the purpose of scrutinising the legal professional privilege claim or claims concerning it. That inspection confirmed that the entire document was properly the subject of a claim of legal professional privilege. The vast bulk of the paper reveals the nature and content of legal advice that ASIC had received from external counsel. While some of the paragraphs not expressly identified by Ms Gupta in her evidence do not directly address or summarise counsel's advice, they either put that advice in context, or provide some other insight or analysis by Ms Gupta in her capacity as a senior lawyer involved in the matter under consideration. The document is properly to be considered as a whole. It is not appropriate to parse and dissect the document in the way contended by ANZ. The EC paper is distinguishable from the sort of document which contains or deals with several discrete topics, or has several different purposes, some of which are and some of which plainly are not privileged. It may be appropriate, in the case of such a document, to redact those parts that are privileged and require the production of the balance. This, however, is not such a case. 188 ASIC's privilege claim in respect of the EC paper in its entirety should accordingly be upheld.

Parties

Applicant/Plaintiff:

Commonwealth Director of Public Prosecutions

Respondent/Defendant:

Citigroup Global Markets Australia Pty Limited

Legislation Cited (11)

Evidence Act 1995(NSW)

Australian Securities and Investments Commission Act 2001(Cth)

Competition and Consumer Act 2010(Cth)

Corporations Act 2001(Cth)

Crimes (Appeal and Review) Act 2001(NSW)

Criminal Procedure Act 1986(NSW)

Director of Public Prosecutions Act 1983(Cth)

Director of Public Prosecutions Regulations 1984(Cth)

Director of Public Prosecutions Regulations 2019(Cth)

Evidence Act 1995(Cth)

Judiciary Act 1903(Cth)

Cases Cited (89)

Cases cited: Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 Ainslie v Ainslie (1927) 39 CLR 381 Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd (2009) 179 FCR 323; [2009] FCAFC 105 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (2019) 138 ACSR 42; [2019] FCA 964 Barnes v Commissioner of Taxation (2007) 242 ALR 601; [2007] FCAFC 88 Barnetson v Framlington Group Ltd [2007] 1 WLR 2443 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 Blair v Curren (1939) 62 CLR 464 Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44 Brouwer v Titan Corporation Limited (1997) 73 FCR 241 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Carr v Finance Co of Australia Ltd (1981) 147 CLR 246 Castillon v P & O Ports Limited (No. 2) [2008] 2 Qd R 219; [2007] QCA 364 Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44 Computer Edge Pty Ltd v Apple Computer Inc. (1984) 54 ALR 767 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 Dowling v Ultraceuticals Pty Ltd (2016) 93 NSWLR 155; [2016] NSWSC 386 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233; [2001] QCA 115 Grassby v The Queen (1989) 168 CLR 1 Hall v Nominal Defendant (1966) 117 CLR 423 Hamilton v Oades (1989) 166 CLR 486 Harrington v Lowe (1996) 190 CLR 311 at 323 Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 Howell v O'Brien [2009] NSWSC 538 Inasmuch Community Inc v Bright [2006] NSWCA 99 Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 Licul v Corney (1976) 180 CLR 213 Makhoul v Barnes (1995) 60 FCR 572 Marsh v Adamson (1985) 9 FCR 408 Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Paulo v Commissioner of Police [2021] NSWSC 517 Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8; [2018] HCA 51 Potier v Maloney [2005] NSWSC 336 R v Gray; Ex parte Marsh (1985) 157 CLR 351 R v Storey (1978) 140 CLR 364 Ramsay v Pigram (1968) 118 CLR 271 Ridgeway v The Queen (1995) 184 CLR 19 Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142 Rogers v The Queen (1994) 181 CLR 251 Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280 Santos v Delphi Petroleum Pty Ltd [2002] SASC 272 Somodaj v Australian Iron and Steel Limited (1963) 109 CLR 285 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports ¶81-423 Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 Thoday v Thoday [1964] P 181 Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Limited (1992) 36 FCR 406 Vasiljkovic v Honourable Brendan O'Connor (2010) 276 ALR 326; [2010] FCA 1246 Walton v Gardiner (1993) 177 CLR 378 Wilson v Union Insurance Co (1992) 112 FLR 166 Windsor v Sydney Medical Service Co-operative Ltd (No 2) [2009] FCA 704 Yokogawa Australia Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738; [2009] SASC 377

Cited By (2)

Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited

Gall v Domino's Pizza Enterprises Limited