Consideration of waiver by the 2020 oral proffers
152 I note again that the determination of whether the partial disclosures by JPMA to the CDPP in late 2020 were inconsistent with its maintenance of confidentiality in the Evidence Outlines is to be made having regard to the context and circumstances in which that disclosure occurred and in light of considerations of fairness arising from that context or those circumstances (Osland at [45]). The relevant considerations of fairness are those bearing upon JPMA seeking to maintain the confidentiality of its documents having regard to its antecedent conduct.
153 The matters of context and circumstance which may be pertinent to the assessment of the requisite inconsistency include the purpose for which the disclosure was made (Osland at [46]); the extent to which the subject matter of the undisclosed material is separate and distinct from that which was disclosed (Bailey at [132]; FKP v Spirits International at [25]); the extent to which the incomplete disclosure may result in "distortion or inaccurate perception" (FKP v Spirits International at [25]); and the legal and practical consequences of limited rather than complete disclosure (Osland at [46]).
154 In the present case, a number of different matters bear upon the assessment of inconsistency.
155 First, JPMA made a conscious and voluntary decision to disclose portions of its confidential documents, and it did so in the pursuit (or perhaps defence) of its commercial and strategic interests. It is true that JPMA was forced to make a decision about maintaining the confidentiality of the whole of the documents by the CDPP indicating that she required the disclosure as a condition of the continued grant of conditional immunity to JPMA. That indication by the CDPP put JPMA in the position in which it had two interests which conflicted: its interest in maintaining the confidentiality of its documents and its interest in not jeopardising the grant of conditional immunity. It chose to give preference to the latter. I accept that it would have preferred not to make the partial disclosures but do not accept that it was "effectively compelled" to do so. It could have chosen to maintain the privilege and risk that the immunity would be withdrawn with the consequences which might then ensue. Faced with conflicting alternatives, it evidently considered that its commercial and strategic interests should be advanced by making disclosure of some of its confidential information.
156 There was no suggestion that the CDPP had agreed that the form of partial disclosure which JPMA indicated it would make, and did in fact make, would be sufficient for her purposes. In fact, on 30 September 2020, Ms Cass-Gottlieb had acknowledged the possibility that the CDPP may decide to take further steps. The extent and manner of the disclosure was left to the decision of JPMA.
157 Secondly, when JPMA made the partial disclosures to the CDPP, it did not do so on the condition, or in the expectation, that the CDPP would keep the disclosed material to herself. JPMA knew that the CDPP took the view that further disclosure of the material was required as part of the discharge of her prosecutor's duty of disclosure in the criminal proceedings and, indeed, that that was part of the CDPP's purpose in seeking the material. JPMA also knew that several of the accuseds sought the disclosure of the "first accounts" because of their relevance to their defence of the criminal charges. In particular, JPMA knew that the accuseds wished, amongst other things, to have the initial accounts of the JPMA employees of the events in 2015 with a view to identifying any exculpatory matters and any prior inconsistent statements. In short, JPMA knew that the partially disclosed material would be deployed in a forensic context and that, in that context, issues about the completeness of the disclosed communications may well arise.
158 Thirdly, when JPMA made the partial disclosures, it knew that the CDPP's position was that it required the whole of the "factual material" in the Evidence Outlines. The ACCC had informed Gilbert + Tobin on 11 September 2020 that, not only did the CDPP require the Evidence Outlines, it required an undertaking from JPMA that the Evidence Outlines did not contain any material omissions of matters contained in the Interview Notes. The CDPP counsel and staff had told the Gilbert + Tobin lawyers that the CDPP sought the factual material.
159 Fourthly, when JPMA made the partial disclosures, it made assertions, expressed or implied, about the extent and character of that which it was disclosing and about that which it was not disclosing. Mr Kyle instructed Gilbert + Tobin to disclose to the CDPP the evidence derived from the Interview Notes and Evidence Outlines which JPMA expected its employees to give at trial in respect of "core conduct" in the ANZ Share Placement. The evidence did not disclose whether Gilbert + Tobin lawyers used the term "core conduct" in their discussions with the CDPP. So far as I can tell, that term does not appear in the notes made by the CDPP lawyers of the meetings on 25, 29 and 30 September 2020. Instead, the notes record the Gilbert + Tobin lawyers and the CDPP counsel and staff referring to disclosure of "the factual material" and of the "relevant parts" of the employees' first accounts. However, I think it reasonable to infer, and I do infer, that the Gilbert + Tobin lawyers complied with Mr Kyle's instruction and so disclosed those portions of the Evidence Outlines thought to be "core".
160 Mr Kyle did not elaborate the term "core conduct". However, it implies conduct regarded as centrally relevant to a given topic. It also implies that not all the "factual material" was disclosed: only that containing the conduct thought to be core.
161 If the Gilbert + Tobin lawyers told the CDPP that they were disclosing the content of the Evidence Outlines concerning the core conduct, they were also representing implicitly that what they were not disclosing was regarded as non-core. If the Gilbert + Tobin lawyers told the CDPP that what they were disclosing was the "relevant factual material", they were representing implicitly that what was not disclosed was not "relevant factual material".
162 The identification of conduct as "core" or of material as "relevant" must have involved someone making evaluations of the "factual material" contained in the Evidence Outlines. Mr Kyle's affidavit does not indicate who it was who made those evaluations nor the criteria which were applied. No one has suggested that the APAC Litigation and Gilbert + Tobin lawyers acted with anything other than good faith in the identification of the conduct which was disclosed as "core" or "relevant", and I accept that they did so. However, the binary classification of conduct as "core" or "non-core" does not mean that there was necessarily a clear line of distinction between the two. The scope for reasonable minds to reach different views about what might be regarded as core and as non-core seems obvious. Moreover, the conduct regarded as "non-core" may still be unrelated to conduct regarded as "core", only less closely connected to the central matter. The same may be said in respect of the categorisation of material as relevant or non-relevant.
163 These considerations suggest two consequences of present relevance. The first is the potential for the perception of what was disclosed as the extent of the conduct which was core to be inaccurate because other undisclosed conduct was also core or, while not itself being core, was so closely connected with the disclosed core conduct, as to be necessary for a complete understanding of the disclosed conduct. Expressed in terms of "factual material", it suggests the potential for the disclosed factual material to have been incomplete and therefore to give rise to a compromised understanding (inaccurate perception) of it.
164 The second is the inconsistency of JPMA in maintaining its assertion of confidentiality over the undisclosed material while at the same time making express and implied assertions about the nature and character of that which it was disclosing and not disclosing, that is, that it was core or non-core or "relevant" or "irrelevant" factual material, as the case may be. Put more shortly, JPMA's express and implied assertions about the character of the information it was disclosing and not disclosing were inconsistent with its maintenance of confidentiality over the undisclosed balance of the documents. It also involved a relevant form of unfairness as JPMA thereby precluded the CDPP from making her own assessment of those matters.
165 In the meeting of the CDPP on 30 September 2020, Ms Cass-Gottlieb had said that the manner in which the Gilbert + Tobin lawyers would make the partial disclosure would "address the area of consistency of evidence", presumably consistency as perceived by JPMA between the content of the employees' first accounts, on the one hand, and the content of their later accounts, on the other. The evidence of Mr Kyle did not indicate whether "consistency of evidence" had informed the identification of what was core and non-core conduct, or of what was relevant and non-relevant. Ordinary experience indicates that the consistency or otherwise of two or more accounts of a single event may, amongst other things, depend on the level of abstraction or specificity with which each account is given. The greater the detail, the greater prospect of one account being different from another, if only because of differences in the detail included or omitted. At the very least, JPMA's express or implied assertions that that which was disclosed was sufficient to allow issues of consistency between accounts to be assessed raises an issue of fairness if the recipients are unable to assess for themselves the extent of the consistencies or inconsistencies. For the reasons given in relation to the disclosure of conduct said to be "core" or "relevant", the very making of the assertion that what was disclosed would be sufficient to enable consistency between accounts to be assessed was inconsistent with the maintenance of the confidentiality of the documents.
166 The fifth matter is pertinent even if JPMA did not make express or implied assertions of the kind to which I have just referred. It was JPMA and not the CDPP who chose the topics which provided the framework for the partial disclosures on 2 October and 13 November. The very size of the redactions in the partially disclosed statements makes it evident that the selection of the relevant topics involved some discrimination by JPMA and its lawyers. The evidence did not disclose the criteria used in the selection of the topics but I infer that these were topics considered by JPMA to be relevant to the prosecution or perhaps relevant to the matters on which issues as to the consistency of its employees' accounts may arise. Again, and accepting as I do that JPMA and the Gilbert + Tobin lawyers acted with good faith, the potential for reasonable minds to differ about these topics is evident. In particular, the potential for incomplete disclosure, occurring innocently, is apparent. As counsel for the CDPP and some of the accuseds submitted, as at the time JPMA made the disclosures, the CDPP had not yet filed the indictment in this Court. This meant that JPMA could not have known with any certitude the topics which would be pertinent in the criminal proceedings, let alone the evidence which may be pertinent to each topic. Yet it seems to have asserted, at least impliedly, that the matters it was disclosing were the extent of the evidence (derived from the Interview Notes and Evidence Outlines) which its employees could give on matters at the heart of the criminal proceedings. The potential in these circumstances for its disclosure to have been incomplete is obvious. This adds to the impression of conduct by JPMA which was inconsistent with the maintenance of the confidentiality in the undisclosed portions of the Evidence Outlines in making an express or implied assertion about the extent of its disclosure while seeking to preclude the CDPP making her own assessment of that matter. It is also suggestive of relevant unfairness.
167 Sixthly, Mr Kyle does not depose that the undisclosed matters concerned distinct or unrelated subject matters. It would have been easy for him to have done so had that been the case. Given the purpose of the Internal Review to which Mr Kyle deposed in [27] of his affidavit, it would seem surprising that the undisclosed matters were wholly unrelated to those which were disclosed. These matters support the Court drawing a Jones v Dunkel inference that the subject matters of the Evidence Outlines and Interview Notes were not separate and distinct.
168 Seventhly, as counsel for the CDPP and ANZ submitted, the partially redacted documents produced by JPMA in answer to the subpoenas (with the portions disclosed at the meetings on 2 October and 13 November 2020 unredacted) illustrate that a reader would have an "inaccurate perception" or "incomplete understanding" of the matters disclosed. By way of illustration, the draft Evidence Outline of one employee prepared following his interview on 7 September 2015 has the first 21 paragraphs redacted, yet para [22] commences "During the call". There is no identification of "the call", when it occurred or of the participants in it. The same is true of the draft outline of evidence of another employee prepared following his interview on 24 September 2015. The first 16 paragraphs of the Evidence Outline are redacted but para [17] commences "The call started off with …".
169 A review more generally of the partially redacted documents produced by JPMA in answer to the subpoenas reveals several other like examples. Their effect is that, even when regard is had only to the Type A redactions, it is not possible to understand completely the parts of the Evidence Outlines which have been disclosed.
170 It is possible that, because of the manner in which the Gilbert + Tobin lawyers announced the topics in the meetings on 2 October and 13 November 2020, these features were not then apparent. That is to say, they may be only a consequence of the way in which redactions have been made. However, even accepting that this is so, the fact is that the redactions have the effect in several instances that it is not possible for a reader to know the occasion (date and time) about which the employee is speaking or the other participants in a conversation accepted by JPMA as being relevant or core.
171 Counsel for JPMA referred to British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816 in which it was held that documents prepared for a privileged purpose in civil proceedings did not cease to be privileged by their disclosure to the prosecution, and their further disclosure by the prosecution to the accused, in criminal proceedings (that accused being the defendant to the civil proceedings). Neill LJ (in the judgment of the Court of Appeal), said that, at 822:
[T]he action of the plaintiff in making documents available for the purpose of the criminal trial did not constitute a waiver of the privilege to which it was entitled in the present civil proceedings. Its action … was in accordance with its duty to assist in the conduct of the criminal proceedings, and could not properly be construed as an express or implied waiver of its rights in its own civil litigation. Indeed, it would in my view be contrary to public policy if the plaintiff's action in making the documents available in the criminal proceedings had the effect of automatically removing the cloak of privilege which would otherwise be available to them in the civil litigation for which the cloak was designed.
172 JPMA's submissions seemed to suggest that the same reasoning be applied in this case, to support a conclusion of no inconsistency.
173 Although, unlike the present case, British Coal involved the complete disclosure of documents to the defence, I do not regard the decision as being of assistance presently. As counsel for ANZ noted, the decision proceeded on an understanding that legal professional privilege is a rule of evidence, whereas in Australia it is well-established that the privilege is a substantive common law rule and an important common law right: Daniels at [9], [11]. Moreover, it seems that the decision in British Coal may have been based on concepts of fairness rather than inconsistency. That detracts from its persuasiveness as authority and it is far from self-evident that, since Mann v Carnell, it would be decided the same way in Australia. I would prefer to regard the decision in British Coal as one illustration in its time of the proposition to which the High Court referred in Mann v Carnell at [30]-[32], namely, that disclosure of a privileged communication to a third party for a limited and specific purpose may not necessarily amount to an imputed waiver.
174 In the present case, I do not think that it may be said that JPMA made the partial disclosures for a limited specific purpose and, for the reasons given earlier, it certainly did not do so on the basis that the CDPP (or for that matter, the accuseds) would keep confidential the disclosed material.
175 The above matters, considered in combination, point to the appropriateness of a conclusion that JPMA's partial disclosures of the documents in late 2020 to the CDPP were inconsistent with the maintenance of confidentiality of the remainder and that (putting the Types B, C and D claims to one side) JPMA should be imputed with a waiver of the confidentiality of the whole of the documents. However, before expressing a concluded view, I will, as several of the parties (including JPMA) submitted was appropriate, inspect the documents.
176 Before making that inspection, it is appropriate to identify matters which were the subject of some submissions which I have not regarded as bearing upon the imputed waiver. In the main, these are matters bearing upon general notions of fairness in a criminal trial.
177 Several of the submissions emphasised the condition of the CDPP's grant of conditional immunity to the effect that JPMA continue to provide "full, frank and truthful disclosure and co-operation to the ACCC (including by withholding nothing of relevance) throughout the course of … any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct". The submissions, as I understood them, were to the effect that there was no relevant unfairness to JPMA in making a form of disclosure which it had voluntarily undertaken to make, as a condition of its obtaining of immunity.
178 I have not relied on this submission, for two reasons: first, because it seeks to invoke a more general conception of unfairness than that which is relevant to the assessment of the requisite inconsistency and, secondly, because it would involve the Court in construing the metes and bounds of the conditions upon which the CDPP granted the immunity. That is an issue which could come before the Court in a substantive way. For example, the CDPP could have insisted on full disclosure of the materials which she now seeks to inspect. Had she done so and JPMA disputed its obligation to do so under the terms of the conditional immunity, the issue may then, by one or more means, have come before the Court for determination. A number of matters would then require consideration. In the view I take, these matters are best left until they truly require determination and the Court will have the benefit of full submissions.
179 Counsel for Deutsche Bank emphasised features of the statement taking process adopted by the ACCC, features of the manner by which the CDPP had discharged her duty of disclosure in the criminal proceedings, JPMA's purpose in making the limited disclosure (which he submitted was to assist the CDPP in complying with her duty of disclosure), the "unquestionable relevance" of the Interview Notes and Evidence Outlines to the criminal proceedings and the prejudice to the accuseds if they are denied access to the material. Counsel for Mr Moscati made submissions to similar effect. I have not relied on these matters, taking the view that they were not directed to the more confined notion of fairness which is pertinent for present purposes. Instead, using the expression from Mann v Carnell, they were directed to notions of fairness at large in the context of the anticipated criminal trial. It is neither necessary nor appropriate in this case for the Court to adjudicate upon the matters required by the CDPP's duty of disclosure nor upon the manner in which that duty has been discharged to date.
180 In the inspection of the documents, I have paid closer regard to the Evidence Outlines (including their earlier drafts) than to the Interview Notes. The latter are not easy to read, being in hand writing, using abbreviations, and reflecting to an extent "in-house" understandings of elements of JPMA's business shared by the interviewer and the interviewee.
181 Without descending into detail, my inspection confirms the appropriateness of the preliminary conclusion expressed above. My firm impression is that, in the assessment of the "core conduct", a reasonably confined view of conduct of that character was taken with the consequence that matters of background, chronology and statements concerning the employees' states of mind which informed their conduct were excluded. I consider that, without disclosure of these matters, the perceptions of the disclosed material are likely to be incomplete and inaccurate.
182 My review of the documents also suggests that, with limited exceptions (and putting to one side the Type B, C and D categories of privilege), the subject matters addressed in the Evidence Outlines are not separate and distinct from the disclosed matters. The Jones v Dunkel inference to which I referred earlier can be drawn even more confidently. Regard to the unredacted versions of the documents suggests that the redactions in the 13 documents containing partial redactions give them a certain lack of coherence and, in some instances, a disjointedness.
183 The inspection also confirms that the JPMA submission that the unredacted portions of the 13 documents can be read and understood without resort to further material within the same document and that the redacted versions contain "severable" statements of fact should not be accepted. It also indicates that the selection of the "core" aspects of the employees' conduct is not sufficient to provide a full account of the evidence which those employees are able to give concerning the alleged cartel conduct.
184 Having made the inspection, I am confirmed in my view, based on the evidence, that JPMA's conduct in making the partial disclosures on 2 October and 13 November 2020 was inconsistent. It is inconsistent for JPMA to seek to maintain the confidentiality of the balance of the documents when, in the pursuit (or defence) of its own strategic and commercial interests, it has disclosed portions of them and has in addition made express and implied representations about the nature and character of that which it was disclosing. Moreover, if the CDPP and the accuseds do not have access to the balance of the Evidence Outlines (again putting to one side the Type B, C and D categories of claimed privilege), they will not have an accurate and complete understanding of that which has been disclosed. In short, there is inconsistency in JPMA's assertions about the extent of that which it has disclosed, on the one hand, and the maintenance of its confidentiality, on the other, and unfairness to those to whom the documents have been disclosed.
185 Finally, I do not accept JMPA's "chilling effect" submission. It overlooked that neither the CDPP nor the accuseds are seeking access to legal advice provided to JPMA. Further, a "chilling effect" submission to the effect made by JPMA could be made in almost any case in which there are disputes about waiver arising from partial disclosure of a document and yet that has not been regarded as a factor bearing upon the inconsistency of conduct and maintenance of confidentiality which is at the heart of imputed waiver.
186 This conclusion makes it unnecessary, strictly speaking, to consider the other bases for imputed waiver for which the CDPP and the accuseds contended. However, in case the matter goes further, I will express my views briefly.