Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd [2020] FCAFC 23 | Case summary

Federal Court of Australia (Full Court)|2020-02-27|Before: O'Callaghan JJ

THE APPLICATION TO EXCUSE COMPLIANCE OR DISCHARGE THE ORDER 89 Deloitte subsequently applied for an order that the uninvolved partners be excused from complying with the production order, or that the production order be discharged, apparently on the basis that they were unable to comply with that order. As Markovic and O'Callaghan JJ have explained, having regard to the nature of the application, the effect of which was to set aside, vary or discharge an interlocutory order made after a contested hearing, Deloitte bore the onus of proving that there had been a material change of circumstances since the production order was made. The primary judge held that Deloitte had not discharged that onus. While there may have been a change in circumstances after the production order had been made, his Honour was nonetheless not satisfied that the change of circumstances was material because he was not satisfied that the uninvolved partners were unable to produce the relevant documents in answer to the production order: Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 5) [2018] FCA 2066 (Sadie Ville v DTT (No. 5)) at [57]. 90 The relevant change in circumstances that Deloitte contended provided a basis for an order that the uninvolved partners be excused from complying with the production order, or that the order be discharged, was that at some point in time shortly after the production order was made, Mr Saayman took possession of the relevant hardcopy documents (including a CD containing electronic copies of documents) and removed them from Deloitte's premises. He also encrypted the electronic files on Deloitte's network or server. He subsequently told one of Deloitte's partners, in a series of apparently carefully contrived and scripted emails, some of which had been settled by Deloitte's lawyers, that he was not prepared to allow access to the documents and was not prepared to provide the password to the encrypted files. It was on that basis, and that basis alone, that Deloitte contended that the uninvolved partners were unable to comply with the production order. 91 The primary judge, with admirable restraint and understatement, described the circumstances created by Mr Saayman's actions as "extraordinary and troubling": Sadie Ville v DTT (No 5) at [54]. I would go further. I would not be so charitable. Indeed, I would characterise Mr Saayman's conduct as outrageous and contumacious, if not bordering on contempt. Deloitte's conduct was not much better. 92 On the basis of the evidence before the primary judge, the inference that Mr Saayman's actions were calculated to frustrate or impede compliance with the production order is almost inescapable. It certainly cannot be doubted that his actions had the effect of frustrating or impeding compliance with the production order that had been made by the primary judge. Mr Saayman undoubtedly knew that, after a strongly contested hearing, the uninvolved partners' privilege claims had been rejected and they had been ordered to produce the relevant documents. The documents were clearly the property of the partnership, not the property of Mr Saayman alone. He had no right, without the authority of his partners, to take possession of them and remove them from Deloitte's premises. Nor did he have any right, without authority, to encrypt the electronic files. It may readily be inferred that Mr Saayman knew that to be the case. Yet within about two weeks of the making of the production order, Mr Saayman deliberately took those steps which he must have known would be likely to frustrate the production order and impede the uninvolved partners from producing documents in compliance with the order. Indeed, it may readily be inferred that Mr Saayman intended that his actions would have that effect, or at least that he believed that his actions would have that effect. 93 Mr Saayman, of course, was not called by Deloitte to explain his actions. His actions were conveniently set out in a series of carefully contrived emails with one of his partners. He was thereby shielded from any prospect of cross-examination. Given the outrageous nature of Mr Saayman's conduct, it is perfectly understandable why he would not have wanted to front the primary judge to give an account of his actions. It is equally understandable why Deloitte did not attempt to adduce evidence from him. 94 As for Deloitte's response to Mr Saayman's outrageous conduct, the best that could be said is that the evidence revealed that Deloitte had effectively done nothing more than conveniently, if not cynically, rely on the circumstances supposedly created by Mr Saayman's actions to defeat the production order. The evidence adduced by Deloitte showed that the partnership or its management had shown no apparent interest in finding out how it was that Mr Saayman had been able to take off with the hardcopy documents and encrypt the electronic documents. The hardcopy documents had been in a secure litigation room, access to which was limited to Deloitte's in-house litigation team, of which Mr Lee was no doubt a member. The electronic files had been securely maintained by Deloitte's "IT services team". Yet none of the witnesses called by Deloitte in support of its application had troubled themselves to ascertain when and how Mr Saayman had been able to enter the secure litigation room and take the documents or when and how Mr Saayman had been able to encrypt files on Deloitte's supposedly secure IT network. 95 It should perhaps be emphasised, in this context, that there was no evidence that any partner or employee of Deloitte authorised Mr Saayman's actions. That said, nor was there any clear, cogent or direct evidence that Mr Saayman's actions had not been authorised in some way by any partner or partners of Deloitte. Equally, there was no evidence that Mr Saayman was assisted by anyone at Deloitte. The inference that he may have received some assistance could not, however, be excluded given that the evidence indicated that nobody at Deloitte had troubled themselves to find out exactly how Mr Saayman was able to do what he did. 96 Deloitte called evidence from three witnesses in support of its application: Mr Lee, Mr David Murray, a Deloitte partner, and Mr Paul Taylor, a Deloitte partner who apparently specialised in "forensic technology". The evidence of each of those witnesses was, in one way or another, most unimpressive. 97 As already noted, Mr Lee was a Senior Legal Counsel at Deloitte and the person who had effectively been tasked with dealing with Deloitte's discovery and production obligations. His evidence was, to say the very least, most unimpressive. His evidence was that he did not know if Mr Saayman had entered the litigation room and was unable to explain how, if he did, he was able to do so. He said that he had not made any inquires to ascertain whether anyone had authorised Mr Saayman to enter the room and access the files and that he did not know when the files were removed. As for the electronic documents, Mr Lee's evidence was that he did not know when or how Mr Saayman had been able to encrypt the electronic files, and that he had not had any discussions with anyone in Deloitte's IT services team to ascertain when and how Mr Saayman was able to gain access to and encrypt the files. 98 With the greatest respect to Mr Lee, it is simply staggering that, as the in-house solicitor who had been intimately involved in the issues surrounding discovery and the production order, he had made no apparent attempt to ascertain the circumstances in which Mr Saayman had, and had been able to, take steps which had had the effect of frustrating compliance with the production order. 99 Perhaps even more troubling is the fact that Mr Lee had apparently done nothing whatsoever to ascertain what, if anything, had been done, or could be done, by Deloitte to retrieve the documents from Mr Saayman or otherwise remedy the circumstances created by Mr Saayman's actions. He plainly had either given that issue no thought, or had thought about it but deliberately decided to do nothing. He also appears to have made no attempt, or no genuine attempt, to ascertain the existence or whereabouts of any copies of the documents that may be able to be produced in answer to the production order. He had not, for example, troubled himself to ascertain whether there were any backup copies of the relevant documents maintained on Deloitte's IT system in a form which had not been encrypted by Mr Saayman. 100 As for Mr Murray, he was party to the emails with Mr Saayman which formed the basis of Deloitte's case that the uninvolved partners were no longer able to comply with the production order. It is not readily apparent how Mr Murray, who was one of the uninvolved partners, came to be involved in the issue concerning the production of the documents. It does not appear that he had had any prior involvement in the matter. He seems to have simply telephoned Mr Lee out of the blue shortly before his email exchange with Mr Saayman. It is equally unclear how, out of all the Deloitte partners, he was the one who came to be the one to consult with Deloitte's external lawyers and communicate with Mr Saayman about his actions. In any event, Mr Murray's convenient appearance on the scene meant that Deloitte had an uninvolved partner, with no apparent previous involvement in the matter, who could swear an affidavit annexing the emails. 101 Despite his supposed interest in compliance with the production order, one of the extraordinary features of Mr Murray's email exchange with Mr Saayman is that Mr Murray does not, at any point, admonish or criticise Mr Saayman for taking the documents, which were partnership property, or for refusing to allow the partnership access to them in circumstances where the uninvolved partners had been ordered by the Court to produce them. Perhaps even more extraordinarily, at no point does Mr Murray directly ask, let alone demand, that Mr Saayman return the documents or provide the password to the encrypted files. It may be recalled, in this context, that Mr Murray's emails were settled after consultation with Deloitte's external lawyers. The fact that the emails did not include any clear or explicit request or demand to return the documents could hardly have been an oversight. Plainly Mr Murray, and those with whom he consulted, had little or no interest in having the documents returned. They were more than happy to simply and cynically take advantage of the circumstances. 102 Mr Murray's evidence, in cross-examination, also revealed his apparent and manifest disinterest in retrieving the documents or remedying the situation created by Mr Saayman's actions. He said that he was not aware whether the Chief Executive Officer or Board of Deloitte had taken any action to get the files back from Mr Saayman, had not made any inquiries concerning the encrypted files and had not spoken to the Chief Executive Officer, or any member of the Board, or any person in the IT services team about any steps that could be taken to "break" the encrypted files that were still on Deloitte's server. 103 Mr Murray's evidence also revealed an apparent disinterest in ascertaining whether Deloitte had other copies of the audit file which had not been seized or encrypted by Mr Saayman and which could accordingly be produced in answer to the production order. Like Mr Lee, Mr Murray's evidence was that he had not made any inquiries to ascertain whether there were any backup copies of the audit files on Deloitte's IT network which had not been encrypted by Mr Saayman. 104 As for Mr Taylor, the apparent point in calling him in support of the application was to demonstrate the difficulty in breaking the encryption that Mr Saayman had applied to the relevant electronic files. Remarkably, however, Mr Taylor was not a part of Deloitte's IT services team and did not have any knowledge of the IT infrastructure used in the firm. He was not familiar with the firm's file backup systems, had no knowledge of whether members of the IT services team controlled access to servers and backup systems, and did not have any experience in relation to gaining access to Deloitte's backup systems. These are not criticisms of Mr Taylor. What is worthy of criticism is that Deloitte chose to call Mr Taylor rather than someone who might have actually known something worthwhile. 105 Deloitte did not adduce any evidence from anyone in its IT services team. There was thus no evidence from anyone who had any knowledge about how Mr Saayman was able to access and encrypt files on a supposedly secure system. More significantly, there was no evidence from anybody about whether there may be backup copies of the relevant audit files, or parts thereof, on Deloitte's IT network or system. It is difficult to avoid the conclusion that the decision not to call someone who knew about these things was deliberate. 106 Having regard to the wholly deficient and unsatisfactory nature of the evidence relied on by Deloitte in support of its application that the uninvolved parties be excused, or that the production order be discharged, it is hardly surprising that the primary judge held, in effect, that the circumstances had not materially changed since the making of the production order. In particular, it is hardly surprising that his Honour was not satisfied that the uninvolved partners were unable to produce the documents. 107 Deloitte's main ground of appeal in relation to the primary judge's dismissal of its excusal or discharge application proceeded on the misconceived premise that the application provided an opportunity for it to simply revisit and re-litigate the question of control that had already been resolved against it. It contended that the primary judge erred in dismissing the application because his Honour did not find, in terms, that any uninvolved partner had control of the documents. But the primary judge had already found that the uninvolved partners had control of the documents. It was incumbent on Deloitte to satisfy the primary judge that the circumstances had materially changed. The relevant material change was said to be that the uninvolved partners were unable to comply with the production order by reason of the actions of Mr Saayman. While to an extent that involved the contention that the uninvolved partners were no longer in control of the documents because Mr Saayman was, that was not the central issue. The central issue, as has been said, was whether the primary judge was satisfied that the uninvolved parties were unable to comply with the order because they were unable to produce the documents. 108 It is, in any event, implicit in the primary judge's findings and reasons, that his Honour was not satisfied that the uninvolved partners were not relevantly in control of any documents that could be produced in answer to the production order, or not able to put themselves in a position where they had control of such documents. The primary judge was plainly dissatisfied with the evidence adduced by Deloitte in relation to the circumstances in which Mr Saayman had been able to take the relevant hardcopy documents and encrypt the relevant electronic documents. His Honour found, in that context, that the circumstances that had arisen as a result of Mr Saayman's actions, appeared to have been "designed to bring about a situation where the [u]ninvolved [p]artners could argue that they are unable to produce the documents": Sadie Ville v DTT (No. 5) at [57]; see also [54]. His Honour was also plainly concerned that "the events … so designed" may have involved "others", and that if that was the case, the uninvolved partners may well be able to produce the documents. While these were not firm or conclusive findings, nor were they matters of mere speculation. Deloitte bore the onus and its evidence was so deficient and unsatisfactory that it had not excluded the possibility, if not likelihood, that the uninvolved partners had simply cynically sought to take advantage of a contrived set of circumstances which could be reversed if push came to shove and the production order was not discharged or they were not excused from complying with it. That was the effect of his Honour's findings. 109 It should also be noted, in this context, that there is no merit whatsoever in Deloitte's contention that the primary judge's "inquiry" into the circumstances in which Mr Saayman had been able to take possession of the hardcopy documents and encrypt the electronic documents was entirely irrelevant. Deloitte bore the onus of proving that circumstances had materially changed and that the uninvolved partners were no longer able to comply with the order. It was plainly relevant, in those circumstances, for his Honour to consider and assess the evidence, such as it was, concerning the alleged change in circumstances and how it came about. 110 The primary judge was equally dissatisfied with Deloitte's evidence about what it had done in response to the circumstances created by Mr Saayman's actions. His Honour observed, in that regard, that "one gets the impression that it is convenient for the [u]ninvolved [p]artners if they are unable to get the documents and they have not tried very hard to overcome the present impediments": Sadie Ville v DTT (No. 5) at [60]. That observation again involved a degree of understatement. In fact, the evidence revealed that Deloitte, on behalf of the uninvolved partners, had done absolutely nothing to reverse or remedy the situation created by Mr Saayman's actions. The obvious, if not inescapable, inference, was that that was because it suited Deloitte and the uninvolved partners to do nothing. Deloitte appears to have not even asked Mr Saayman to return the partnership's documents, or provide the password to the encrypted documents, let alone demand that he do so. 111 Nor was there any suggestion, let alone evidence, that Deloitte had explored the legal options open to it if Mr Saayman refused to accede to any demand that he return the documents and provide the password. Given that the documents were undoubtedly partnership property, those legal options may have included general law actions in detinue or conversion, or an action to recover partnership property pursuant to the terms of Deloitte's partnership agreement. At the very least it would have been open to the Chief Executive Officer to demand that Mr Saayman return the documents and provide the password. If Mr Saayman wilfully disobeyed that request, it would have been open to the Chief Executive Officer to expel him from the partnership: see cl 11.2(g) of the partnership agreement. 112 It should be emphasised, in this context, that it was not for Sadie Ville to prove that Deloitte had legal options open to it to retrieve the documents taken by Mr Saayman, or legal options open to it to compel Mr Saayman to provide the password to the encrypted documents. Deloitte, or the uninvolved partners, bore the onus of proving that they were unable to comply with the production order. That included, in part, proving that it was unable to retrieve the documents or obtain the password. Deloitte did not even attempt to prove that it was unable to retrieve the documents or obtain the password. That is perhaps not surprising given that the evidence clearly revealed that Deloitte had simply decided to cynically exploit the circumstances created by Mr Saayman's actions and had given no genuine consideration to how it might remedy or resolve the situation. 113 The final aspect of the primary judge's reasons for not being satisfied that the uninvolved partners were unable to comply with the production order concerned the potential existence of documents that had not been taken or encrypted by Mr Saayman and accordingly would be able to be produced in answer to the production order. The primary judge found that there were, or may be, such documents in existence, including documents that had previously been produced to Hastie's liquidator and images of Mr Saayman's laptop: Sadie Ville v DTT (No. 5) at [58]. His Honour rejected Deloitte's submission that those documents were not within the terms of the production order because they were copies and the production order refers only to originals: Sadie Ville v DTT (No. 5) at [59]. Deloitte contended that his Honour was in error for so finding. I agree with Markovic and O'Callaghan JJ that Deloitte's contentions in that regard have no merit. 114 The primary judge also referred to the possible or likely existence of backup copies of the relevant documents on Deloitte's IT systems: Sadie Ville v DTT (No. 5) at [60]. Once again, the evidence adduced by Deloitte was wholly deficient and unsatisfactory on this topic. As has already been noted, none of the witnesses called by Deloitte were aware whether any searches had been made to ascertain whether backup copies exist, or were able to give any meaningful evidence on that topic. Deloitte appears to have been studious in not calling anyone from its IT services team. 115 In all the circumstances, the primary judge was correct to find that Deloitte had failed to discharge its onus of proving that the relevant circumstances had materially changed. It was well and truly open to his Honour to find that he was not satisfied that the uninvolved partners were unable to comply with the production order. Deloitte failed to demonstrate any error in his Honour's finding or reasoning in that regard. Ground one in the notice of appeal in VID 65 of 2019 had no merit and is rejected. 116 Deloitte's second ground of appeal in respect of the primary judge's refusal to excuse the uninvolved partners from compliance with the production order, or to discharge the production order, relies entirely on the decision in Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647. Deloitte contended, in effect, that that decision was authority for the broad principle or proposition that where a valid claim for privilege is raised by some joint owners of documents, that claim is not defeated simply because other joint owners raise no objection, or have no privilege claims themselves. Put another way, it appeared to be contended that if some joint owners of documents have valid privilege claims, that necessarily relieves other joint owners of the documents, who had no privilege claims, of the obligation to produce. Thus it was said that Mr Saayman's and other involved partners' privilege claims are not defeated simply because the uninvolved partners, as joint owners of the documents, have no valid privilege claim. Or, put the other way, it appeared to be said that the uninvolved partners were relieved of the obligation to produce because Mr Saayman and the other involved partners, who jointly owned the documents, had valid privilege claims. 117 It is difficult to see why this was an issue which genuinely arose in the context of Deloitte's application that the uninvolved partners be excused, or that the production order be discharged. If there was an available argument based on the decision in TNT Management, it should have been put in the original privilege application. The excusal or discharge application was not a general invitation to re-litigate the privilege claims. 118 In any event, there is no merit in Deloitte's arguments concerning TNT Management. It suffices to say, in response to those contentions, that the primary judge was correct that TNT Management is not authority for that broad principle, however couched, particularly in the context of a partnership: Sadie Ville v DTT (No. 5) at [67]-[68]. It is also abundantly clear that the facts and circumstances in TNT Management were far removed from the facts and circumstances concerning the privilege claims in this matter. Ground 2 of this appeal accordingly had no merit.

CONCLUSION 119 None of Deloitte's appeal grounds has any merit. The primary judge was correct to reject the privilege claims by the uninvolved partners and was correct to reject the application by the uninvolved partners to be excused from complying with the production order, or for the production order to be discharged. I agree with Markovic and O'Callaghan JJ that the appropriate orders in the circumstances are that the applicant have leave to appeal, but that the appeals be dismissed with costs. I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

INTRODUCTION 120 These applications for leave to appeal concern two principal questions: (1) whether so-called Uninvolved Partners of Deloitte Touche Tohmatsu (DTT or the firm) should be required to produce documents, in respect of which they have claimed the privilege against self-incrimination and the privilege against exposure to penalties; and (2) whether, even if the claims to privilege fail, those documents are, in any event, not within the Uninvolved Partners' power, possession or control for the purposes of the rules of court governing the production of documents. 121 An issue subsidiary to the first question also arises, namely whether the primary judge was wrong to find that certain penalty proceedings would now be out of time. 122 The second question arises because a current DTT audit partner, Mr Reuben Saayman, has taken possession of copies of discovered documents in respect of which he has an undisputed claim to privilege and encrypted them with password protection. He now denies his partners access to them which, in turn, has prompted claims by those partners that the documents seized by Mr Saayman are not in their "power, possession or control", and cannot be produced by them as part of the discovery process. 123 Oral argument proceeded on the basis that leave to appeal would be granted. 124 In order to understand how the two principal questions arise, it will be necessary to recount the relevant history of the proceedings before the primary judge (to whom the proceeding is docketed). As his Honour explained in his reasons in Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 3) [2018] FCA 1107; (2018) 357 ALR 695 (Sadie Ville v DTT (No 3)), the proceeding was commenced in 2017 by the applicant, Sadie Ville Pty Ltd (as trustee for the Sadie Ville Superannuation Fund) (Sadie Ville) on its own behalf and as a representative party pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth). Sadie Ville had purchased shares in Hastie Group Limited (Hastie) between 14 June 2011 and 21 February 2012 (the Relevant Period). Hastie later went into liquidation. DTT had been the auditors of Hastie and had prepared: an audit report in respect of its audit of Hastie's financial statements for the financial year ended 30 June 2010; a review report in respect of its review of Hastie's financial statements for the half-year ended 31 December 2010; an audit report in respect of its audit of Hastie's financial statements for the financial year ended 30 June 2011; and an investigating accountants' report for inclusion in a draft prospectus released by Hastie on 14 June 2011 (the Pathfinder) and in a prospectus released by Hastie on 17 June 2011 (the Prospectus). The second respondent in the substantive proceeding, Deloitte Corporate Finance Pty Limited, a wholly-owned subsidiary of DTT, had prepared a report on directors' forecasts for inclusion in the Pathfinder and in the Prospectus. Sadie Ville brought the proceeding on its own behalf and on behalf of certain other persons who had acquired shares in Hastie during the Relevant Period. 125 Sadie Ville alleges that DTT contravened various provisions of the Corporations Act 2001 (Cth) (the Corporations Act), the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act), and the Australian Consumer Law (Victoria) (the ACLV), being the Australian Consumer Law text as applied by the Fair Trading Act 1999 (Vic) as amended by the Fair Trading Amendment (Australian Consumer Law) Act 2010 (Vic). Some of the provisions that DTT is alleged to have contravened, as well as providing a basis for a claim for compensation, are offence or pecuniary penalty provisions. In particular, DTT is alleged to have contravened s 1041E of the Corporations Act, s 12DB of the ASIC Act and s 29 of the ACLV. Further, the statement of claim in effect alleges that DTT contravened s 307A of the Corporations Act.

THE SECOND AMENDED STATEMENT OF CLAIM 126 Sadie Ville's pleaded case is contained in its Second Amended Statement of Claim (SASOC) dated 21 December 2017. 127 The Federal Court Rules 2011 (Cth) (Federal Court Rules) permit a proceeding to be brought against two or more persons who it is claimed are liable as partners in the partnership name: r 9.41(2). 128 Sadie Ville's case is in substance brought against all of the partners of the firm during the Relevant Period. 129 Two partners had responsibility for the audit and review engagements for Hastie during the Relevant Period (the Engagements), Mr Saayman and Mr Moore (who is now retired). 130 We have adapted the following summary of the SASOC largely from the reasons of the primary judge in Sadie Ville v DTT (No 3) at [28] ff. 131 Sadie Ville alleges that DTT operated as a partnership; and acted by a partner of the firm acting in the firm's name, in the ordinary course of business of the firm, and with the authority of his or her co-partners, within the meaning of s 14 of the Partnership Act 1958 (Vic) and s 10 of the Partnership Act 1892 (NSW) (SASOC, [5]). 132 Paragraph 6 of the SASOC alleges: In the premises in paragraph 5, at all material times, DTT: 6.1 was a partnership conducting business in Victoria and New South Wales as accountants, auditors and advisors; 6.2 was and is able to be sued in the partnership name, under Rule 9.41 of the Federal Court Rules 2011 (Cth); 6.3 was a partnership that included, among its partners and employees practising in Victoria and New South Wales, persons who are registered company auditors within the meaning of section 9 and Part 9.2 of the Corporations Act; and 6.4 was a person within the meaning of: (a) section 729 of the Corporations Act; (b) sections 1041E and 1041H of the Corporations Act, by reason of section 761F of the Corporations Act; (c) sections 12DA and 12DB of the Australian Securities and Investments Commission Act 2001 (Cth) … and (d) sections 18 and 29 of the Australian Consumer Law (Vic) ... 133 Paragraph 15 of the SASOC relates to the auditors' obligations (defined as "DTT's Statutory Audit Obligations"). It is alleged that DTT was required to conduct its audits of Hastie's full year reports in accordance with the applicable Auditing Standards (as defined). 134 Part D of the SASOC concerns Hastie's 2010 full year results and alleges that: (a) Hastie made a number of representations in August 2010, at the time of releasing its annual financial report for the 2010 financial year (defined as "Hastie's August 2010 Representations") ([25]). (b) Hastie's actual position as at August 2010 was as set out in [26] (defined as the "August 2010 Information"). (c) The August 2010 Information: was material to the accuracy of the representations of Hastie's financial position and financial performance conveyed by its financial statements for the 2010 financial year ([27]); concerned matters that the auditing standards required an auditor to consider and to obtain sufficient appropriate audit evidence about ([27]); and was information that ought reasonably to have been detected and reported by a professional company auditor exercising due care and skill to conduct the audit of Hastie's financial statements for the 2010 financial year in accordance with DTT's Statutory Audit Obligations (including s 307A of the Corporations Act), but was not disclosed in Hastie's financial statements for the 2010 financial year. (d) Hastie's financial report for the 2010 financial year included DTT's audit report in respect of Hastie's financial statements (defined as the "DTT FY2010 Audit Report") ([28]). (e) By the audit report, DTT made certain statements and representations (defined as the "DTT FY2010 Audit Representations") ([29]). (f) The DTT FY2010 Audit Representations: were made in relation to a financial product within the meaning of ss 763A(1)(a) and 764A(1)(a) of the Corporations Act and s 12BAA of the ASIC Act, namely Hastie securities; were statements or information likely to induce persons to apply for, dispose of or acquire Hastie securities; and was information that a reasonable person would expect to have a material effect on the price or value of Hastie securities ([30]). (g) In planning, performing and reporting the audit of Hastie's financial statements for the 2010 financial year, DTT failed in various regards ([31]). (h) In the premises, DTT: did not conduct the audit of Hastie's financial statements for the 2010 financial year in accordance with the Auditing Standards; had not obtained sufficient and appropriate audit evidence to provide a basis for its audit opinion; had not exercised the care and skill to be expected of a competent professional company auditor in the conduct of the audit; and did not have reasonable grounds for the audit opinion it expressed and the representations alleged earlier in the pleading (defined as the "DTT FY2010 Audit Breaches") ([32]). (i) DTT, in making the DTT FY2010 Audit Representations, made a statement or disseminated information that was false in a material particular or materially misleading ([33]). (j) DTT ought reasonably to have known at the time of making the DTT FY2010 Audit Representations: the August 2010 Information; the DTT FY2010 Audit Breaches; and the matters alleged in [33] ([34]). (k) In the premises, "by issuing the DTT FY2010 Audit Report DTT contravened s 1041E of the Corporations Act" ([35]). (l) By issuing the audit report, DTT made certain false representations and, in the premises, DTT contravened s 12DB of the ASIC Act, and, further or alternatively, s 29 of the ACLV ([36]). (m) DTT engaged in conduct that was misleading or deceptive or likely to mislead or deceive and, in the premises, contravened s 12DA of the ASIC Act, s 1041H of the Corporations Act, and, further or alternatively, s 18 of the ACLV ([37]). 135 As the primary judge observed, "[t]he pleadings in relation to the review of the financial statements for the half-year ended 31 December 2010 (Part E) adopt a broadly similar structure, with some differences in the formulation of the allegations on account of the fact that DTT conducted a review rather than an audit of the half-year financial statements. Contraventions of the same offence and pecuniary penalty provisions are alleged": Sadie Ville v DTT (No 3) at [29]. 136 Part H deals with the alleged "Prospectus Conduct". It also alleges that DTT contravened s 1041E of the Corporations Act ([83]), s 12DB of the ASIC Act and s 29 of the ACLV ([84]), and alleges that the so-called "DTT Prospectus Representations" were misleading or deceptive within the meaning of s 728(1) of the Corporations Act ([77]). 137 Part I deals with "Post-Prospectus Conduct". It concerns allegations relating to the audit of the financial statements for the 2011 financial year and adopts a similar structure to Part D. Contraventions of the same offence and pecuniary penalty provisions are alleged. 138 The claims for loss or damage include claims that, but for the alleged contraventions, the equity raising in June 2011 would not have been undertaken, the Hastie securities would not have been available for acquisition after 14 June 2011, or the securities would not have been available for acquisition at the relevant offer prices ([97I]). In the alternative, it is alleged that the price at which Hastie securities traded was inflated by reason of the alleged representations ([114A]-[114E]), and some of the claimants acquired Hastie securities in a market inflated by the representations ([115]).

THE OFFENCE AND PECUNIARY PENALTY PROVISIONS 139 These appeals were argued by counsel for the parties by reference to the current versions of the relevant offence and pecuniary penalty provisions contained in the Corporations Act and the ACLV, presumably on the agreed assumption that there is no material difference between them and their form when the conduct the subject of the proceeding occurred in 2010 and 2011. For some reason, perhaps because the matter was overlooked, counsel took us to offence and pecuniary penalty provisions in the ASIC Act which have been recently amended. Nothing turns on that, however.

The Corporations Act 140 Section 307A of the Corporations Act provides: 307A Audit to be conducted in accordance with auditing standards (1) … (2) If an audit firm, or an audit company, conducts: (a) an audit or review of the financial report for a financial year; or (b) an audit or review of the financial report for a half-year; the lead auditor for the audit or review must ensure that the audit or review is conducted in accordance with the auditing standards. Fault-based offence (3) A person commits an offence if the person contravenes subsection (1) or (2). Strict liability offence (4) A person commits an offence of strict liability if the person contravenes subsection (1) or (2). 141 The penalty for contravention of s 307A(3) is imprisonment for two years or a fine of 240 penalty units or both; the penalty for contravention of s 307A(4) is a fine of 50 penalty units: Corporations Act, s 1311B, Sch 3. 142 Section 324AB of the Corporations Act provides: 324AB Effect of appointing firm as auditor - general (1) The appointment of a firm as auditor of a company or registered scheme is taken to be an appointment of all persons who, at the date of the appointment, are: (a) members of the firm; and (b) registered company auditors. This is so whether or not those persons are resident in Australia. (2) … (3) A report or notice that purports to be made or given by a firm appointed as auditor of a company or registered scheme is not taken to be duly made or given unless it is signed by a member of the firm who is a registered company auditor both: (a) in the firm name; and (b) in his or her own name. (4) … (5) For the purposes of criminal proceedings under this Act against a member of an audit firm, an act or omission by: (a) a member of the firm; or (b) an employee or agent of the audit firm; acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is also to be attributed to the audit firm. 143 Section 761F of the Corporations Act relevantly provides: 761F Meaning of person - generally includes a partnership (1) This Chapter applies to a partnership as if the partnership were a person, but it applies with the following changes: (a) obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners; (b) any contravention of a provision of this Chapter, or a provision of this Act that relates to a requirement in a provision of this Chapter, that would otherwise be a contravention by the partnership is taken (whether for the purposes of criminal or civil liability) to have been a contravention by each partner who: (i) aided, abetted, counselled or procured the relevant act or omission; or (ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner). 144 Section 1041E of the Corporations Act provides: 1041E False or misleading statements (1) A person must not (whether in this jurisdiction or elsewhere) make a statement, or disseminate information, if: (a) the statement or information is false in a material particular or is materially misleading; and (b) the statement or information is likely: (i) to induce persons in this jurisdiction to apply for financial products; or (ii) to induce persons in this jurisdiction to dispose of or acquire financial products; or (iii) to have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market operated in this jurisdiction; and (c) when the person makes the statement, or disseminates the information: (i) the person does not care whether the statement or information is true or false; or (ii) the person knows, or ought reasonably to have known, that the statement or information is false in a material particular or is materially misleading. (2) For the purposes of the application of the Criminal Code in relation to an offence based on subsection (1), paragraph (1)(a) is a physical element, the fault element for which is as specified in paragraph (1)(c). (3) For the purposes of an offence based on subsection (1), strict liability applies to subparagraphs (1)(b)(i), (ii) and (iii). 145 Contravention of s 1041E constitutes an offence under s 1311(1). For completeness we note that s 1311(1) provides: A person who: (a) does an act or thing that the person is forbidden to do by or under a provision of this Act; or (b) does not do an act or thing that the person is required or directed to do by or under a provision of this Act; or (c) otherwise contravenes a provision of this Act; is guilty of an offence by virtue of this subsection, unless that or another provision of this Act provides that the person: (d) is guilty of an offence; or (e) is not guilty of an offence. 146 The current penalty for contravention of s 1041E(1) in the case of an individual is: (1) imprisonment for 15 years; and/or (2) a fine the greater of (a) 4,500 penalty units, or (b) if the court can determine the benefit derived and detriment avoided because of the offence, that amount multiplied by three: Corporations Act, s 1311B, Sch 3.

The ASIC Act 147 Section 12DB of the ASIC Act relevantly provides: 12DB False or misleading representations (1) A person must not, in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion by any means of the supply or use of financial services: (a) make a false or misleading representation that services are of a particular standard, quality, value or grade … … (3) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability. 148 Contravention of s 12DB constitutes an offence under s 12GB(1) of the ASIC Act, which until 13 March 2019 provided: 12GB Offences against Subdivision D (1) A person who: (a) contravenes; or (b) aids, abets, counsels or procures a person to contravene; or (c) induces, or attempts to induce, a person whether by threats or promises or otherwise, to contravene; or (d) is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of; or (e) conspires with others to contravene; a provision of Subdivision D (sections 12DA to 12DN) other than section 12DA, is guilty of an offence punishable on conviction: (f) in the case of a person who is not a body corporate - by a fine not exceeding 2,000 penalty units; or (g) in the case of a person who is a body corporate - by a fine not exceeding 10,000 penalty units. 149 Section 12GB(1) of the ASIC Act now provides: 12GB Offences against Subdivision D (1) A person commits an offence if the person: (a) contravenes; or (b) attempts to contravene; or (c) is involved in a contravention of; a provision of Subdivision D (sections 12DA to 12DN) other than section 12DA. Penalty: 2,000 penalty units. 150 Contravention of s 12DB may also lead to the imposition of a pecuniary penalty. Until 13 March 2019, this was so by virtue of s 12GBA, which relevantly provided: 12GBA Pecuniary penalties (1) If the Court is satisfied that a person: (a) has contravened a provision of Subdivision C, D or GC (other than section 12DA); or (b) has attempted to contravene such a provision; or (c) has aided, abetted, counselled or procured a person to contravene such a provision; or (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) has conspired with others to contravene such a provision; the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate. 151 Until 13 March 2019, s 12GBC provided: 12GBC Civil action for recovery of pecuniary penalties (1) ASIC may institute a proceeding in the Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 12GBA. (2) A proceeding under subsection (1) may be commenced within 6 years after the contravention. 152 Since 13 March 2019, it has been s 12GBB, rather than ss 12GBA and 12GBC, which provides for the making of pecuniary penalty orders, and for the time in which an application for such an order is to be made. That section provides as follows: 12GBB Pecuniary penalty orders Application for order (1) ASIC may apply to a Court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. (2) ASIC must make the application within 6 years of the alleged contravention. Court may order person to pay pecuniary penalty (3) If a declaration has been made under section 12GBA that the person has contravened the provision, the Court may order the person to pay to the Commonwealth a pecuniary penalty that the Court considers is appropriate (but not more than the amount specified in section 12GBC). (4) An order under subsection (3) is a pecuniary penalty order. (5) … 153 We note that while s 12GBC used to provide that a proceeding for the recovery of a pecuniary penalty "may be commenced within 6 years after the contravention", s 12GBB now provides that "ASIC must make [an application for a pecuniary penalty order] within 6 years of the alleged contravention".

The ACLV 154 Section 29 of the ACLV provides in part: 29 False or misleading representations about goods or services (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: … (b) make a false or misleading representation that services are of a particular standard, quality, value or grade; or … 155 Although s 29 is not an offence provision, there is an offence provision in substantially the same terms: ACLV, s 151(1). This creates an offence of strict liability: ACLV, s 151(4). The maximum penalty for the offence if the person is not a body corporate is a fine of $500,000: ACLV, s 151(6). Section 29 is a pecuniary penalty provision: ACLV, s 224(1). The maximum penalty for a contravention of s 29 if the person is not a body corporate is also a fine of $500,000: ACLV, s 224(3). 156 Section 228 of the ACLV provides: 228 Civil action for recovery of pecuniary penalties (1) The regulator may institute a proceeding in a court for the recovery on behalf of the Commonwealth, a State or a Territory, as the case may be, of a pecuniary penalty referred to in section 224. (2) A proceeding under subsection (1) may be commenced at any time within 6 years after the contravention or conduct.

THE PARTNERSHIP ACT 157 Sub-section 14(1) of the Partnership Act 1958 (Vic) (Partnership Act) provides: Liability of the firm for wrongs (1) Subject to subsection (2), where by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm or with the authority of his or her co-partners loss or injury is caused to any person not being a partner in the firm or any penalty is incurred the firm is liable therefor to the same extent as the partner so acting or omitting to act. 158 Section 16 provides: Liability for wrongs joint and several Every partner is liable jointly with his co-partners and also severally for everything for which the firm while he is a partner therein becomes liable under either of the last two preceding sections. 159 Sections 10(1) and 12 of the Partnership Act 1892 (NSW) are in almost identical terms (see also ss 10 and 12 of the Partnership Act 1890 (UK)).

THE DISCOVERY ORDERS 160 On 5 March 2018, the primary judge made orders for discovery, requiring DTT to give discovery of the following categories of documents: (a) its audit files (however titled) and working papers for: (i) the DTT audit of Hastie's financial statements for the financial year ended 30 June 2010; (ii) the DTT review of Hastie's financial statements for the half-year ended 31 December 2010; and (iii) the DTT audit of Hastie's financial statements for the financial year ended 30 June 2011; (b) Hastie's Audit and Risk Management Committee (ARMC) meeting packs and minutes for the period 25 February 2010 to 28 May 2012; and (c) the file and working papers (as the case may be) in relation to the investigating accountants' report contained in the Pathfinder and the Prospectus issued by Hastie in June 2011, (collectively, the Engagement Documents). 161 On 3 April 2018, DTT filed and served its list of documents (List of Documents) verified by an affidavit of Mr Anthony Lee (First Lee Affidavit), a Senior Legal Counsel employed by DTT. Mr Lee said that the documents in Pt 2 of the list of discovered documents were "in the control" of DTT, and claimed privilege from production of them on the grounds of privilege against self-incrimination (PSI) or self-exposure to a penalty (penalty privilege). 162 In a second affidavit affirmed on 4 June 2018, Mr Lee sought to clarify what he meant. He said that the claim should be read as a privilege claim made on behalf of the DTT partners at the relevant time or times of the conduct complained of in the statement of claim. 163 In a third affidavit affirmed on 18 June 2018 (Third Lee Affidavit), Mr Lee said that the Engagement Documents were and are "… maintained securely and access to them is limited to domain administrators within [DTT's] IT services team and/or [DTT's] in-house litigation team. Otherwise, [DTT] partners and staff can only access the Privileged Material with the consent of Reuben Saayman and a member of [DTT's] in-house litigation team".

THE THREE DECISIONS OF THE PRIMARY JUDGE RELEVANT TO THE APPEALS

Privilege claims of Uninvolved Partners not established 164 Sadie Ville challenged DTT's privilege claims. The primary judge held that partners who were directly involved in the Engagements, including Mr Saayman, had made out their claim to PSI (a finding not now disputed) but that the other partners, called the Uninvolved Partners, had not made out their claim to either PSI or penalty privilege because production of the documents would not give rise to a real and appreciable risk of prosecution or the institution of proceedings for a pecuniary penalty: Sadie Ville v DTT (No 3) at [106] ff. 165 His Honour's reasons for doing so were as follows: 106. … For the reasons that follow, I consider that, in relation to [the Uninvolved Partners], production of the documents would not give rise to a real and appreciable risk of prosecution or the institution of proceedings for a pecuniary penalty. 107. Insofar as s 1041E of the Corporations Act is concerned, to establish an offence based on contravention of this provision, it would be necessary to establish the requisite elements of the offence to the criminal standard. Reading s 1041E together with s 761F, it would need to be established that the partner aided, abetted, counselled or procured the relevant act or omission, or was knowingly concerned in, or party to, the relevant act or omission. The prospect of prosecuting authorities pursuing such a case against a partner who was not directly involved in the relevant engagements is, to my mind, theoretical rather than real. Although s 761F would not be applicable, the same considerations would apply to an offence based on accessorial liability for a contravention of s 728 of the Corporations Act. 108. Insofar as s 307A of the Corporations Act is concerned, while it is true that an offence based on this provision is a strict liability offence (as to which, see Clode v Barnes [1974] 1 WLR 544), the focus of the provision appears to be on the lead auditor for the audit or review. Section 307A(2) provides that, if an audit firm conducts an audit or review, 'the lead auditor for the audit or review' must ensure that the audit or review is conducted in accordance with the auditing standards. Thus the focus is on those directly involved in the audit or review. In light of this, and notwithstanding the rules of attribution in s 324AB(5) of the Corporations Act, I consider there to be little prospect of a prosecution being brought against a partner who was not involved in the relevant engagements. 109. … 110. … I do not consider that production of the documents would give rise to a real and appreciable risk of prosecution for the other partners for contravention of s 12DB of the ASIC Act or s 151 of the ACLV. In relation to s 12DB of the ASIC Act, reading this together with s 761F of the Corporations Act (see s 5(2) of the ASIC Act and s 761A of the Corporations Act), the considerations discussed in [107] above would apply equally. In relation to s 151 of the ACLV, while the offence is a strict liability offence, and therefore all partners may be liable for an offence, it is much less likely that a prosecution would be brought against a non-involved partner compared with a partner who was involved. In the circumstances, I consider the prospect of prosecution of a non-involved partner to be theoretical rather than real. 111. … 112. I have also given consideration to whether, in respect of the other partners, there may be a real and appreciable risk of prosecution for offences other than those set out above (for example, offences based upon fraud). However, for the reasons expressed above, I consider the risk of prosecution against the non-involved partners to be theoretical rather than real. 113. Further, and generally, there is no indication that ASIC is investigating the auditors of Hastie or that any consideration is being given to prosecuting the auditors. While it is true that there have been some prosecutions in relation to the Hastie collapse, these were instituted some time ago and involved officers of the company rather than auditors. I also note that the onus is on DTT to establish that the privileges apply. I am not satisfied that it has established this in the case of the other partners. 114. Accordingly, I reject the claim of privilege made on behalf of the other partners.

"No control" contention rejected 166 In the same judgment, the primary judge also rejected DTT's contention that the Uninvolved Partners did not have relevant control of the Engagement Documents. 167 In his reasons, his Honour set out the evidence Mr Lee gave in the witness box, as follows: 71. Mr Lee was cross-examined on the question of access to the relevant documents. Mr Lee said that, when he said in the First Lee Affidavit that the documents were 'in the control of the First Respondent', he meant that they were in control of '[a]ny of the partners'. He then indicated that by this he meant any one of the partners. 72. Mr Lee accepted that the firm operates under a partnership deed. He accepted that: the board of the firm could make decisions in relation to the disposition of partnership property; the board could make decisions by way of giving directions to the chief executive officer in respect of any matter that the board on behalf of the partners considered appropriate; and the board is elected by the partners of the firm. 73. In relation to access to audit files, the following exchange took place during Mr Lee's cross-examination: Mr Lee, how are decisions made within the partnership regarding procedures for the storage of documents like audit files?---Audit files are generally, like - the audit files are stored such that only the engagement teams have access. And that practice is a result of a decision made by a decision making body within the partnership; is that correct?---I don't know how that came about. … Now, that procedure in relation to the storage of audit files is the result of some decision made within the partnership that that procedure should apply; is that correct?---I can't say. Right. Are you able to say, Mr Lee, whether a decision made within the partnership regarding that kind of procedure for the storage of audit files is a decision which a meeting of the partners generally is authorised to change?---I can't say. Is it a decision regarding procedure - I withdraw that. Is it - sorry. That decision regarding the procedure for storing audit files is a decision that would be amenable to review by other decision-making bodies within the partnership, correct?---I wouldn't know. You don't know?---No. Mr Lee, do you know anything about the process for making decisions within the Deloitte's partnership in relation to the management or storage of audit files?---All I know is what I said before, which is they're limited to the audit engagement team members. All right. And where does that limit come from?---I don't know. All right. So far as you know, it is just a practice by convention?---It's - I think it - well, the practice is there to prevent partners that aren't supposed to have access to certain audit files - to obtain access to those audit files, because they don't need access. 74. Mr Lee also gave evidence during re-examination that, once litigation is commenced, he seeks approval from the engagement partner to obtain access to the materials for the litigation team and that, once permission is obtained, the files are 'quarantined'. 75. As the evidence set out in [73] makes clear, Mr Lee is not familiar with: who determines the access arrangements in relation to audit and review files; whether the arrangements can be changed by the partners in general meeting; or whether the arrangements are amenable to change by other bodies within the partnership. In light of this, I consider the evidence set out in [6] of the Third Lee Affidavit to do no more than describe the current administrative arrangements in relation to access to the documents in question. This is consistent with the way Mr Lee expressed himself during cross-examination (as set out in [73] above), which seems to describe administrative arrangements. 76. It follows that I do not regard Mr Lee's evidence as going to the ownership of the documents in question, or the legal entitlement of partners other than Mr Saayman to access the documents. It is plain from Mr Lee's evidence during cross-examination that he has no knowledge of these matters. (Emphasis in original.) 168 His Honour returned to the issue later in his reasons at [115] as follows: DTT contends that the other partners do not have 'control' of the documents (in the sense of possession, custody or power in respect of the documents) and therefore an order for production should not be made against them. The evidentiary basis for this submission is [6] of the Third Lee Affidavit. However, as discussed at [68]-[76] above, I consider that paragraph to do no more than describe the current administrative arrangements regarding access to the documents. Mr Lee was not in a position to give evidence about the ownership of the documents or the legal entitlement of partners other than Mr Saayman to access the documents. Accordingly, I do not accept that the other partners do not have control of the documents. 169 The primary judge directed the parties to submit minutes of proposed orders giving effect to his reasons.

"No control" finding re-agitated 170 DTT sought to re-agitate the issue of the Uninvolved Partners' control of the Engagement Documents. The primary judge (albeit with a degree of understandable reluctance) granted DTT leave to apply to have the order for production varied or discharged if it sought to establish, on proper material, that DTT (other than Mr Saayman and any other partner directly involved in the Engagements) did not have possession, custody or power in respect of the documents. Relevantly, in Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 4) [2018] FCA 1218 (Sadie Ville v DTT (No 4)) at [5], his Honour said: DTT further submits that the Court has not made a finding that any individual named person who was a partner at the relevant historic times has any presently enforceable legal right to or access to the relevant documents. I consider this submission to be contrary to the substance of the Reasons. On the basis of the evidence that was before me, I concluded that the partners of DTT other than those who were directly involved in the relevant engagements do have control of the documents (in the sense of possession, custody or power in respect of the documents): see [15] and [115]-[116] of the Reasons; see also [68]-[76]. However, I will reserve liberty to apply, so that DTT can apply to have the order varied or discharged if it seeks to establish, on proper material, that DTT (other than Mr Saayman and any other partner directly involved in the relevant engagements) does not have possession, custody or power in respect of the documents. 171 His Honour also ordered that "[b]y 4.00 pm on 12 September 2018, [DTT], other than Mr Saayman and any other partner directly involved in the relevant engagements, produce the documents in categories 5 to 9 of the respondents' list of documents dated 3 April 2018" (being the Engagement Documents) (Production Order). The Production Order was entered on 15 August 2018. 172 DTT then made an application to vary or set aside the Production Order under r 39.05(c) of the Federal Court Rules, which provides that "The Court may vary or set aside a judgment or order after it has been entered if … it is interlocutory") (Discharge Application). The principal ground relied on by DTT was that Mr Saayman had custody of the Engagement Documents and refused to give them to the Uninvolved Partners. 173 DTT filed additional affidavits in support of that application, namely: (1) two affidavits of David Murray, one of the Uninvolved Partners, dated 6 September and 27 September 2018; (2) two affidavits of Paul Taylor, a partner of the firm specialising in forensic technology, dated 27 September and 1 November 2018; and (3) a fourth affidavit of Mr Lee dated 1 November 2018. 174 The hearing of the Discharge Application proceeded on the basis that it was open to the parties also to rely on the evidence in relation to the claim for PSI and penalty privilege that was before the court at the hearing that took place on 29 June 2018. 175 In his fourth affidavit, Mr Lee said that upon conclusion of an audit or review, the statutory files were archived by the audit or engagement team, and that if an audit or review matter became litigious, the in-house litigation team would obtain access to the relevant audit review files in archives and to the backup folders. 176 Mr Lee was cross-examined at the hearing of the Discharge Application. As the primary judge recorded in his reasons, it emerged during cross-examination that the copies of the Engagement Documents described in the First Lee Affidavit had been collected into the "litigation room" in DTT's Sydney offices (Litigation Room) in accordance with normal firm procedure, but at some time after that affidavit had been affirmed, but before the making of the Discharge Application, all copies of the Engagement Documents, other than those made for use by the in-house and external DTT lawyers, had been either removed from that room into the physical possession of Mr Saayman or password-encrypted by him (in the case of soft copy files on the firm's computer system): see Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 5) [2018] FCA 2066 (Sadie Ville v DTT (No 5)) at [40]-[41], [54]. 177 The cross-examination of Mr Lee included the following exchanges: MR ARMSTRONG: … Now, Mr Lee, before lunch, we were discussing the process that you were responsible for of getting in the documents that might be required to be discovered by Deloittes for the purposes of this proceeding. And you were explaining that you had caused them to be taken to the litigation room in the Sydney office, do you recall that?---Yes. Have I misstated your evidence at all?---No, that's - - - Thank you. So you were in charge of the process of getting the documents; correct?---Not at the time, no. But for these purposes, yes. So for the purposes of this proceeding?---Yes. You were responsible for collecting the documents that might be required to be discovered; is that correct?---That's correct. Thank you. And having collected at least some documents, you caused them to be sent to the litigation room in the Sydney office; is that correct?---They were already in the litigation room. They were already there?---Yes. … Were you familiar with the Deloittes Supporting Securities Policies document at the time that you made your first affidavit in this proceeding on 3 April this year?---I think you need to explain what familiar - like, was I aware that some policies existed, yes. Did I - you know, have I - you know, do I know them or have I read them in detail, no. All right. Well, okay, can I put it to you this way, Mr Lee: were you aware at the time of making your first affidavit on 3 April 2018 that Deloittes had internal policies that required that, once the firm became aware of a litigation risk in relation to, for instance, a particular audit, then the files relating to that audit should be collected by the in-house legal team and, thereafter, held in a secure place?---That's - that's my understanding of what's supposed to take place. And just to be clear, it was your understanding that, in accordance with those policies, the documents that had been collected were to be kept secure and - so that they could not be interfered with; correct?---That's correct. … Did you enquire whether any precautions were in place to ensure that that manila set [comprising audit documents in the form of hard copies and compact discs] was not removed from the litigation room?---The litigation room was secured. How was it secured?---It's only swipe card access. And what do you have to do to get a swipe card to let you access?---Well, you go to the office services and - yes, but access is restricted. Okay. And who decides who gets a swipe card?---The litigation team. … But you're the person in charge, you're the person responsible for keeping these documents secure. So did you check to see who had access to the litigation room?---It's my understanding that it has just been limited to the litigation team. Okay. Right. So can you tell his Honour how is it that the manila set got out of the litigation room and got into Mr Saayman's possession?---I - I don't know. Don't know?---I don't know. So let's just understand this, Mr Lee. You've got a litigation room with a swipe card secure access control door on it. Your legal services team decides who gets access to the room. Am I correct so far?---That's right. The reason for those extensive precautions is because you are aware of the importance of keeping potentially discoverable documents secure in the way that you've already discussed; am I correct?---That's correct. And you're telling his Honour that somehow these documents, the manila set, got out of the litigation room and into the possession of Mr Saayman; is that correct?---As far as I understand, yes, that's correct, yes. … Mr Lee, have you made any inquiries to ascertain how it is that those security precautions set up to maintain the integrity of those files happened we take it, to fail?---No, I haven't. You haven't asked anybody?---Well, it's not unreasonable for an audit partner to want to look at their files, so that's - - - All right. So did you - did you authorise Mr Saayman … to get into the litigation room?---No. Have you made any inquiries to find out whether anybody authorised Mr Saayman to get the files from the litigation room?---No.

Discharge Application dismissed 178 At [3]-[5] of Sadie Ville v DTT (No 5), the primary judge summarised the grounds of the Discharge Application as follows: 3. The partners who are subject to the Production Order (the Uninvolved Partners) have made an application pursuant to the liberty to apply afforded by paragraph 3 of the orders dated 15 August 2018 for an order that they be excused from complying with the Production Order or that the Production Order be discharged. The main basis upon which the application is made is that Mr Saayman (who successfully claimed the privilege against self-incrimination and the privilege against exposure to penalties) has custody of the documents and will not release them to the Uninvolved Partners. The evidence indicates that Mr Saayman has obtained the original files for the relevant engagements (comprising both hard copy documents and soft copy (ie, electronic) documents on compact disks (CDs)). Prior to Mr Saayman obtaining the documents, they were held by DTT's in-house lawyers in the 'litigation room' in the firm's Sydney offices (the Litigation Room). It is unclear how Mr Saayman (who is based in Brisbane) obtained the documents. The Litigation Room is secured by swipe card access, and access is limited to DTT's litigation team. Mr Saayman has also obtained custody of a laptop computer containing a copy of many of the relevant documents. It is unclear how Mr Saayman obtained the laptop, which had also been in the Litigation Room. 4. Further, it seems that Mr Saayman has password protected (or encrypted) certain files on the firm's computer system that contain copies of the documents and will not release the password. 5. In these circumstances, the Uninvolved Partners contend that they are unable to produce the documents and seek to be relieved from complying with the order. 179 The primary judge made a number of detailed factual findings, based on the evidence produced by DTT and answers given in the course of cross-examination by Mr Lee, Mr Murray and Mr Taylor about: (1) the record-keeping practice of DTT at the time of the Engagements (2010 and 2011); and (2) the different versions of the Engagement Documents, including: (a) hard copy documents (in manila-type folders) and soft copy documents on a CD (inside a plastic sleeve at the front of the manila-type folders) (together called the manila set); (b) a backup copy of the soft copy documents from the manila set, which was kept in a secured client folder on DTT's audit network drive (Hastie Audit Network Drive Backup Copies); (c) documents pertaining to the Engagements in the secured client "administration" folder on the audit network drive; (d) documents on a laptop computer that was produced by DTT to the liquidators of Hastie in the course of the examination proceeding (the Produced Laptop); (e) a USB drive that was provided by DTT to the liquidators of Hastie in the course of the examination proceeding (the Produced USB); (f) hard copy documents produced by DTT to the liquidators of Hastie in the course of the examination proceeding (the Produced Hard Copy Documents); (g) images of the laptop computers of Mr Saayman and Mr Moore; (h) documents pertaining to the Engagements stored on a database used by DTT's internal and external lawyers referred to as the Relativity Database; and (i) documents stored on a laptop computer held by Clifford Chance, the firm of solicitors acting for DTT in this proceeding. 180 At [21]-[23] of Sadie Ville v DTT (No 5), the primary judge made the following findings in relation to Mr Lee's evidence: 21. Mr Lee accepted during cross-examination that he was 'given responsibility for collecting the documents on behalf of Deloittes for the purposes of discovery in this proceeding'. He also gave evidence during cross-examination (which I accept) that at the time he made the First Lee Affidavit (3 April 2018) the Hastie Statutory Audit and Review Files were secured in the Litigation Room. Mr Lee gave the following evidence in relation to the 'manila set' (being the Hastie Statutory Audit and Review Files): … So your evidence is that as at April 2018 that manila set was held in a secure way by the in-house legal team in the litigation room in the Sydney office; is that right?---That's correct. Mr Lee also accepted during cross-examination that 'it was part of [his] responsibility to keep those potentially discoverable documents in a place and in a form that made them accessible to [him], acting on behalf of the first respondent'. It follows that, as at April 2018, DTT's legal team held the Hastie Statutory Audit and Review Files on behalf of DTT (that is, the partners of DTT at the relevant times for the purposes of the proceeding). 22. On 18 June 2018, Mr Lee made the Third Lee Affidavit. Mr Lee stated at [6]: The documents comprising the Privileged Material [that is, the documents over which privilege was claimed] are maintained securely and access to them is limited to domain administrators within [DTT's] IT services team and/or [DTT's] in-house litigation team. Otherwise, [DTT] partners and staff can only access the Privileged Material with the consent of Reuben Saayman and a member of [DTT's] in-house litigation team. 23. During cross-examination in relation to the present application, Mr Lee sought to clarify some aspects of the above paragraph. He said that it was 'clumsily worded' and 'conflated two different issues'. The first issue was the 'manila set', which Mr Lee believed was securely maintained in the Litigation Room (as at 18 June 2018). He said that he had not seen the documents in the room at this time, but this was his assumption. The second issue was that, where he stated that access was limited to DTT's IT services team, he was referring to the network folders. Later in the cross-examination, Mr Lee further explained that when he referred to 'access' he was referring to access to a folder as distinct from accessing the contents of individual documents. He stated that he did not know if the people referred to in [6] of his affidavit could access the individual documents. (Emphasis in original.) 181 The primary judge also made findings about the evidence given by Mr Murray about email exchanges between Mr Murray and Mr Saayman, after Mr Murray became aware of the Production Order. The correspondence, which senior counsel for Sadie Ville dubbed "a charade of compliance", and which was settled by DTT's external lawyers, was as follows. 182 On 29 August 2018, Mr Murray sent an email to Mr Saayman as follows: I expect you are aware that we have been instructed by the Court to produce the following records. • File including working papers for the audit of Hastie Group Limited's financial statements for the financial year ended 30th June 2010 • File including working papers for the review of Hastie Group Limited's financial statements for the half year ended 31st December 2010 • File including working papers for the audit of Hastie Group Limited's financial statements for the financial year ended 30th June 2011 • File and working papers in relation to the Investigating Accountants Report contained in the Pathfinder Prospectus and Prospectus issued by Hastie Group Limited in June 2011 • ARMC Minutes 26th August 2011. It is my understanding that all of these documents, comprising hard and soft records, are currently with you or under your control. Can you confirm that you have the records and advise whether I am able to access them or advise if you are willing to release the records to me. 183 On 30 August 2018, Mr Saayman responded to Mr Murray: I confirm that all the records referred to below are secured and under my control. The court has found that, on the grounds of privilege against self-incrimination, I may refuse to produce these records. I intend to exercise my right to keep these records under my control and not to release nor provide access to these records. 184 On 5 September 2018, Mr Murray wrote to Mr Saayman: Thank you for your email. Please may I ask you to clarify a couple of points. First, what do you mean when you refer to the documents being secured and under your control, and [s]econdly when you say you intend not to release or provide access to the records, does that mean you will not be willing to allow anyone else to access them. 185 On the same day, Mr Saayman responded: The records as listed below [are] under my control in the following manner: 1. The physical files and back up disks have been locked up securely and only I have the keys to these records. 2. The electronic files have been password protected and only I know the password to these files. I further confirm that, on the basis set out below, I am not intending to give anyone access to any of these records. 186 On 24 September 2018, Mr Murray sent an email to Mr Saayman: You state in your email below that the physical files [and] back up discs are locked up. Are you willing to tell me where they are located? 187 On 25 September 2018, Mr Saayman responded: The physical files, back up disks and computer containing the backups are under my control and I can confirm that these are not on any Deloitte premises. 188 On 26 September 2018, Mr Murray wrote to Mr Saayman: I note that the files, back up disks and computer are not located on Deloitte Premises. However I need to know whether they are located at premises which I could have access to. Can you therefore let me know where these items are physically located. For example are they being stored at our offsite records storage. 189 On 27 September 2018, Mr Saayman responded: These items are not on any Deloitte premises nor a location controlled and accessible by any Deloitte partners or staff. The locations are controlled by me and unless I provide that access, which I stated below I am not willing to do, you are not able to access these items. 190 The primary judge concluded on the basis of the evidence before him as follows: (1) Mr Saayman has custody of the following: (a) the audit and review files for the Engagements; (b) the file and working papers pertaining to the investigating accountants' report engagement; (c) the ARMC Minutes of 26 August 2011; and (d) the Produced Laptop. (2) Mr Saayman has encrypted the following files (the Encrypted Files) on the firm's computer system: (a) the Hastie Audit Network Drive Backup Copies; and (b) the documents pertaining to the Engagements in the secured client "administration" folder. (3) It is unclear when the Hastie Statutory Audit and Review Files and the other documents referred to in these reasons at [179(2)] were taken out of the Litigation Room and obtained by Mr Saayman. (4) It is unclear when the encryption took place. (5) Mr Lee did not authorise Mr Saayman to "get into the Litigation Room". (6) Mr Lee did not participate in any communications with anybody in which there was any discussion of the manila set being permitted to be removed from the Litigation Room. (7) The Litigation Room was secured by swipe card access. (8) Access to the Litigation Room was limited to the litigation team. (9) Mr Lee did not know how it was that the manila set got out of the Litigation Room and into Mr Saayman's possession. (10) Mr Lee: (a) had not made any inquiries to find out whether anybody authorised Mr Saayman to get the files from the Litigation Room; (b) did not know whether Mr Saayman went into the Litigation Room or not; (c) did not know when the files were removed from the Litigation Room; (d) had not been involved in any discussions about the possibility of someone with appropriate IT expertise using access to the firm's IT system generally to try to find clues or techniques by which that person might be able to break the encryption that applies to the Encrypted Files; and (e) had not made any inquiries to try and find out on what date the encryption was applied. (11) The Produced Laptop, which had been returned by the liquidators to Clifford Chance in late November 2017, is now in Mr Saayman's custody, and no explanation was given as to how that came to be. (12) The Produced USB and the Produced Hard Copy Documents were in the possession of the liquidators. (13) Mr Murray (who it will be recalled is one of the Uninvolved Partners): (a) was not aware of the CEO or the board of the firm taking any action to get the audit files back from Mr Saayman; (b) had not made any inquiries as to when the encryption was applied to the files that he understood to be encrypted; and (c) had not spoken to the CEO, any member of the board, or any person within the IT department about steps that the firm could take to break the encryption that has been applied to the files that are still on its server. 191 The primary judge also made findings in relation to Mr Taylor's evidence. Although proffered as a partner of DTT specialising in forensic technology to give evidence about how long it would take to complete further "brute force attacks" on the Encrypted Files to "break a password" (because Mr Saayman refuses to tell anyone what the password is) - namely, over 12,600 years - it transpired that Mr Taylor: (1) was not part of the firm's IT services team; (2) did not have knowledge of the IT infrastructure used within the firm; (3) did not have familiarity with the firm's backup systems; (4) had no knowledge of whether IT personnel at the firm controlled access to servers and backup systems; (5) did not have any experience of gaining access to backup systems within the firm; (6) had made no inquiries as to whether there were other copies of the audit file anywhere on the network that have not been encrypted by Mr Saayman; and (7) had not looked for documents that contain copies of the audit file or copies of parts of the audit file. 192 Under the rubric of "Consideration", the primary judge continued (at [54]-[56]): 54. The circumstances described above are extraordinary and troubling. An order was made for production of certain relevant documents by the Uninvolved Partners. The documents were, at least at the time that the respondents' list of documents was prepared, held by DTT's in-house lawyers on behalf of DTT. The documents were located in the secure Litigation Room, access to which was limited to DTT's litigation team by a swipe card access system. Yet somehow the documents have been obtained by Mr Saayman and he is refusing to release them. The circumstances appear to be designed to bring about a situation where the Uninvolved Partners can argue (as they have on this application) that they are unable to produce the documents in accordance with their discovery obligations. 55. The circumstances in which Mr Saayman obtained the documents from the Litigation Room have not been explained in any detail in the material before the Court. Remarkably, very little, if anything, has been done to investigate how Mr Saayman obtained the documents. In particular, Mr Lee, the in-house lawyer with the carriage of the proceeding on behalf of DTT, gave evidence that: (a) he did not know how it was that the manila set got out of the Litigation Room and into Mr Saayman's possession; (b) he has not made any inquiries to find out whether anybody authorised Mr Saayman to get the files from the Litigation Room; (c) he does not know whether Mr Saayman went into the Litigation Room or not; (d) he does not know when the files were removed from the Litigation Room; and (e) he does not know how the Produced Laptop got from the Litigation Room to Mr Saayman. 56. Likewise, in relation to the Encrypted Files, the circumstances in which the encryption occurred have not been explained in any detail. It is unclear how and when this occurred. Mr Lee gave evidence that he has not made any inquiries to try to find out on what date the encryption was applied. Similarly, Mr Murray gave evidence that he has not made any inquiries as to when the encryption was applied to the relevant files. 193 The primary judge held that he was not satisfied that the Uninvolved Partners were unable to produce the documents and that the Uninvolved Partners had not adduced sufficient evidence to discharge the burden necessary in order to be excused from complying with the Production Order (or that it be discharged), reasoning at [57]-[58] as follows: 57. In the absence of a detailed explanation of how Mr Saayman obtained the documents, I am not satisfied that the Uninvolved Partners are unable to produce the documents. The series of events appears to have been designed to bring about a situation where the Uninvolved Partners could argue that they are unable to produce the documents. If the events were so designed, and involved not just Mr Saayman but others as well, it may well be the case that the Uninvolved Partners can produce the documents. In circumstances where the Uninvolved Partners have not provided a full explanation of how Mr Saayman obtained the documents - or even made inquiries to try to find this out - I am not satisfied that they are unable to produce the documents. The Uninvolved Partners are seeking to be excused from complying with the Production Order. Alternatively, they seek an order that the Production Order be discharged. It is incumbent on the Uninvolved Partners on an application such as this to demonstrate that they are unable to comply with the order. For the reasons indicated, the Uninvolved Partners have not satisfied me that they are unable to produce the documents. 58. Further and in any event, the evidence indicates that there are, or may well be, other copies of the relevant documents accessible to the Uninvolved Partners … 194 The primary judge accordingly dismissed the Discharge Application.

THE APPEALS 195 There are two appeals before the court. 196 The first appeal is against the Production Order (Privilege Appeal). DTT's grounds of appeal are: 1. The primary judge erred in finding that … there was not a real and appreciable risk of prosecution in respect of 'a partner who was not involved in the relevant engagements' such that they were not able to claim privilege against self-incrimination in respect of the documentary production sought ([Sadie Ville v DTT (No 3)] [106]-[110]). 2. The primary judge erred in finding that any relevant pecuniary penalty proceeding would be out of time such that 'a partner who was not involved in the relevant engagements' was not able to claim privilege against exposure to penalty in respect of the documentary production sought ([Sadie Ville v DTT (No 3)] [111], [118]). 3. The primary judge erred in finding that the documents in question are in the control of the partners of the firm Deloitte Touche Tohmatsu other than Mr Reuben Saayman ([Sadie Ville v DTT (No 3)] [116]). 4. The primary judge erred in finding that production orders could be made other than in the name of the individuals who are purported to be the subject of the order ([Sadie Ville v DTT (No 4)] [4]). 197 Sadie Ville relies on a Notice of Contention, which contends in substance that the Production Order should be affirmed on grounds other than those relied upon by the primary judge, as follows: 1. That there was no real or appreciable risk of any of the partners and former partners comprising the Appellant other than those directly involved in the relevant engagements being exposed to the imposition of a pecuniary penalty because an order for the payment of a pecuniary penalty can only relevantly be made against persons who have engaged in any of the types of conduct described in s 12GBA(1) of the [ASIC Act] or s 224(1) of the [ACLV]. 2. That only Mr Reuben Saayman and other partners directly involved in the relevant engagements discharged their onus of establishing that they should not be compelled to comply with the obligation to produce the documents in categories 5 to 9 of the list of documents dated 3 April 2018 served by the Appellant and Deloitte Corporate Finance Pty Ltd (being the First and Second Respondents, respectively, in the proceedings below) (List of Documents) on the ground of the privilege against self-incrimination. 3. Alternatively to paragraph 2, that an order directed to the partners and former partners comprising the Appellant, for the production of the documents in categories 5 to 9 of the List of Documents dated 3 April 2018, can be expressed (if required) by reference to the names of the partners in the lists of partners in tabs 3, 4, 5 and 6 of exhibit TF-2 to the affidavit of Timothy Finney affirmed on 19 October 2018, other than Mr Reuben Saayman and Mr Bruce Moore. 198 The appeal was conducted by both parties on the basis that the issues that arise on appeal are not the same as those either argued below or decided by the primary judge. As will become apparent, it is not necessary to give separate consideration to the Notice of Contention. 199 The second appeal is against the primary judge's dismissal of the Discharge Application (Discharge Appeal). DTT's grounds of appeal are: 1. The primary judge erred in not excusing the individuals (Uninvolved Partners) the subject of order 1 of the Orders of Moshinsky J in proceeding VID632/2017 given on 15 August 2018 (Production Order) from complying with the Production Order either in whole or in part in circumstances where the primary judge did not find that any Uninvolved Partner has control of the documents the subject of the Production Order ([Sadie Ville v DTT (No 5)] [57]-[60]). 2. The primary judge erred in not excusing the Uninvolved Partners from complying with the Production Order either in whole or in part in circumstances where none of the Uninvolved Partners has been found to have control over any document the subject of the Production Order or any document referred to in [Sadie Ville v DTT (No 5)] [58], [60] to the exclusion of Mr Reuben Saayman and other partners of the Applicant (Involved Partners) who have made valid claims for privilege against self-incrimination and self-exposure to penalty which have been upheld by the Court in [Sadie Ville v DTT (No 3)] ([Sadie Ville v DTT (No 5)] [65], [67]-[68]). 200 We will deal with each appeal in turn.

The Privilege Appeal - Ground 1 (real and appreciable risk)

Introduction 201 DTT's case on the Privilege Appeal hinges upon the proposition that the Uninvolved Partners are liable to prosecution under or by virtue of one or other of the various statutory provisions relied on by Sadie Ville in the SASOC, relevantly, s 14 of the Partnership Act and its NSW equivalent, ss 307A and 1041E of the Corporations Act, ss 12DB, 12GB(1) and 12GBA of the ASIC Act and s 29 of the ACLV (collectively, the Offence and Penalty Provisions) because they "sheet home" to the Uninvolved Partners criminal liability. 202 DTT contends that because the SASOC alleges that "DTT" was appointed as auditor, "DTT" is a "person" within the meaning of the Offence and Penalty Provisions, "DTT" contravened each of those provisions and "DTT" failed to comply with the auditing standards, it follows that Sadie Ville alleges that: (1) "all of the Deloitte Partners contravened the [Offence and Penalty Provisions]"; and (2) "all of the Deloitte Partners failed to comply with the auditing standards". 203 It follows, so it is contended, that the Uninvolved Partners are exposed to penalties for contravention of the Offence and Penalty Provisions for reasons which Deane J explained in Reid v Howard (1995) 184 CLR 1 at 7 as follows: Compliance by the appellant with the order of disclosure … would involve disclosure of potentially incriminating material to an officer of the State … and to solicitors representing clients who are involved in litigation against the appellant in which they claim to have been defrauded by him. In turn, the solicitors would be free to make the disclosed material available to those clients and their counsel. The disclosed material could be used as a basis of investigation by the clients and their legal representatives. Indirect or derivative evidence discovered through those investigations could constitute the basis of public findings in the civil proceedings to the effect that the appellant was guilty of specific acts of misappropriation of trust moneys. Such indirect or derivative evidence could be made available to prosecution authorities and could be used either in the prosecution of the appellant for such specific offences or as a basis for further investigation. In that regard, the prosecution authorities would be neither obliged to desist, nor justified in desisting, from the duties of their office in order to import to the orders made by the court an effectiveness which they do not of themselves possess … 204 Sadie Ville submits there is no appellable error founding the Privilege Appeal, and that there is no real and appreciable risk that the Uninvolved Partners may be subject to criminal prosecution or exposure to a pecuniary penalty in respect of the matters in issue in this proceeding. 205 Sadie Ville submits that DTT's contention that, because the allegations in the SASOC are made against all of the partners for contravention of provisions that (in ASIC's hands) may also give rise to criminal liability it follows that all partners are exposed to a risk of criminal prosecution, is misconceived. It says that the allegations made in the SASOC relate to the conduct of the Engagements, which were the responsibility of two individual partners (Messrs Saayman and Moore), and that accordingly there is no basis for criminal or penal action against any other partner. 206 In our view, for reasons which we explain below, DTT's critical proposition is misconceived because it confuses one partner's personal criminal liability for an offence, on the one hand, with another partner's liability to pay, or contribute to the payment of, any penalty imposed upon that partner, on the other hand. They are two separate and distinct things because the latter liability does not involve the attribution of personal, criminal liability. 207 Accordingly, the production of the Engagement Documents by the Uninvolved Partners would not give rise to any real and appreciable risk of their prosecution, because there is no risk at all. 208 We consider each of the statutory provisions relied upon by DTT in turn, starting with the Partnership Act.

The Partnership Act 209 DTT contends that the provisions set out at [157]-[158] above make each of the DTT partners jointly and severally liable for any penalty incurred by each other partner (including Mr Saayman) in respect of the Engagements. 210 DTT submits that ss 8, 14 and 16 of the Partnership Act and their NSW equivalents (ss 4, 10 and 12 of the Partnership Act 1892 (NSW)) "are capable of applying broadly to both civil and criminal wrongs and penalties" (citing Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 (Dubai Aluminium) at [108] (Lord Millett)) and that "[a]ccordingly, [the] Uninvolved Partners are jointly and severally liable for the wrongful acts or omissions of the Involved Partners, and are jointly and severally liable for any civil or criminal penalty incurred by the Involved Partners by reason of those wrongful acts or omissions". 211 DTT's written submissions go on to say: Once it is accepted that the Involved Partners are exposed to a real and appreciable risk of a pecuniary penalty (as was found and is not challenged), this necessarily means that the Uninvolved Partners are also exposed to the same risk having regard to the provisions of the Partnership Acts referred to above. Sadie Ville cannot approbate and reprobate. It relies on the provisions of the Partnership Acts, and presumably absent the reliance on those provisions the Uninvolved Partners would not be party to these proceedings and the question of whether they could claim the privilege would not arise. Rather, the only question would be whether the Involved Partners could claim the privilege. Sadie Ville cannot rely on the provisions of the Partnership Acts so as to justify joining the Uninvolved Partners and claiming damages from them, and then (in the context of the privilege claims made by them) deny the operation of the very same provisions which render them jointly and severally liable for any penalty (criminal or civil) incurred by the Involved Partners. None of this was addressed in [Sadie Ville v DTT (No 3)]. 212 Sadie Ville says that DTT's submission that the Partnership Act renders each Uninvolved Partner jointly and severally liable, vicariously or otherwise, for any penalty incurred by any other partner is misconceived, because the criminal liability of partners is personal and where criminal proceedings are brought against more than one partner, the elements of the offence must be proven against each of them individually. 213 We agree. It is a necessary consequence of DTT's case that a partner who had no involvement in, or knowledge of, his or her partner's offences is also to be held criminally liable for the conduct the subject of the offences. That would be a surprising result. As senior counsel for Sadie Ville put it, if the construction of the Partnership Acts contended for by DTT were correct, "then the tax partner in the Perth office can go to jail for the conduct of Mr Saayman in the Brisbane office - despite never having known about it - not even having met Mr Saayman [and] having nothing to do with the audit part of the firm". 214 Such an unlikely proposition finds no support in the language of the Partnership Act (or as we will explain, in the Offence and Penalty Provisions), or in the cases. 215 The "vicarious liability" of a partnership for the acts of a delinquent partner, who has, for example, been found to have contravened a penalty provision and fined, is a liability for the penalty - not for the offence. So much was explained in Strother v 3464920 Canada Inc [2007] 2 SCR 177, which concerned, in part, the effect of s 12 of the British Columbia Partnership Act, RSBC 1996, c 348. That section was in almost identical terms to the relevant provisions of the Partnership Acts and provided as follows: If, by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm or with the authority of his or her partners, loss or injury is caused to any person who is not a partner in the firm or any penalty is incurred, the firm is liable for that loss, injury or penalty to the same extent as the partner so acting or omitting to act. 216 Binnie J held as follows (at 237-238): What then is the nature and extent of the innocent partners' liability? The firm is liable 'for that loss, injury or penalty'. The inclusion of a 'penalty' in s. 12 indicates that even statutory impositions are included (Dubai Aluminium, at para. 103). The combination of 'loss, injury or penalty' suggests that the legislative purpose is to ensure that the delinquent partner's liability incurred 'to any person who is not a partner', with the firm's authority or in the ordinary course of the firm's business, is to be treated as the obligation of the firm regardless of its legal origin … … … Nowhere in s. 12 is it suggested that prior knowledge of the delinquency by the other partners is a condition precedent to liability. On the contrary, proof of prior knowledge by the partners would raise questions of direct liability and, if found, would render unnecessary resort to the carrier's liability under s. 12 of the Partnership Act. It is in the nature of vicarious liability under s. 12 that the firm may be innocent of any fault other than the misfortune of having on board a rogue partner at the time of his or her delinquency. 217 In Riley v Director of Public Prosecutions [2016] EWHC 2531 (Admin); [2017] 1 WLR 505 (Riley), the defendants were members of a partnership which operated a slaughterhouse. 218 On an occasion when only the first defendant (SR) was present at the slaughterhouse, a cow fell and, at the direction of an on-site official veterinarian, was killed. Charges were then laid against SR, and also against the second to fourth defendants (GR, MR and KR), purely on the basis that they were SR's partners. 219 Gross LJ, having remarked at [28] that "[s]tatements of principle appear to be few and far between as to the criminal liability of partners …", continued (at [29]): … [I]n the sphere of partnership as elsewhere, criminal liability is ordinarily personal to the individual offender. As Lord Widgery CJ observed in Parsons v Barnes [1973] Crim LR 537,538, in the context of trading standards legislation: 'No general proposition could be laid down that one partner was necessarily responsible for the acts of his co-partner under the legislation'. So too, in Garrett v Hooper [1973] RTR 1. The defendant was a partner in a business and the joint owner of a vehicle which was partnership property and was driven by a co-partner in breach of road traffic legislation. The defendant's appeal against his conviction not allowed. As expressed in the headnote, 'a co-partner did not 'use' a vehicle merely because it was driven by his partner on partnership business …' In the present case, however, the Crown Prosecution Service case hinged on GR, MR and KR being criminally liable merely and necessarily, without more, because (as is alleged) SR was guilty of an offence under section 4 (1) of the Act. 220 Gross LJ also observed that where an offence involves an element of mens rea, even if one partner has the requisite mens rea to commit an offence, his "state of mind cannot be attributed to the partnership such as to render … his otherwise blameless co-partners … criminally responsible for his acts or omissions" (at [32]). 221 His Lordship also considered the English equivalent of the provisions of the Partnership Act in issue here, as follows (at [33]): Fifthly, ss. 10 and 12 of the Partnership Act 1890 ("the Partnership Act"), do not assist the [Crown Prosecution Service] to overcome the difficulties in this case, already canvassed. Ss. 10 and 12 of the Partnership Act provide as follows: 10. Liability of the firm for wrongs Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act. 12. Liability for wrongs joint and several Every partner is liable jointly with his co-partners and also severally for everything for which the firm while he is a partner therein become liable under either the two last preceding sections. Even if the allegations against SR are made good and (1) render the partnership liable for a penalty and (2) in addition to SR, GR, MR and KR are liable to pay that penalty if not met out of partnership assets (but see below), these sections go no further and do not provide the basis for holding GR, MR and KR criminally liable for the offence (ex hypothesi) committed by SR. Ss. 10 and 12 of the Partnership Act are concerned with satisfying debts and liabilities for which a partnership has become liable; they do not operate to impose criminal liability where none has otherwise been established. I add this. As already concluded, the offence here is not one of strict liability. In the circumstances, it is even questionable that ss. 10 and 12 of the Partnership Act could be relied upon to satisfy any penalty arising from the acts of SR from the assets of GR, MR and KR, who were not complicit in the s. 4(1) offence: see, R v W. Stevenson & Sons and others [2008] EWCA Crim 273; [2008] 2 Cr App R 14, per Lord Phillips of Worth Matravers CJ (as he then was) at [28] … (Emphasis in original.) 222 DTT placed much reliance on the brief decision of Lord Widgery CJ (MacKenna and May JJ agreeing), in Clode v Barnes [1974] 1 WLR 544 (Clode v Barnes). The judgment relevantly reads: LORD WIDGERY C.J. This is an appeal by case stated by Cardiff Crown Court in respect of a charge brought by the prosecutor against the defendant … the charge alleging that the defendant, jointly with one David Lynn Thomas, trading together as Wholesale Car Co., in the course of trade as a used car dealer supplied to Richard Thomas a 1968 Austin 1800 saloon to which a false trade descriptio[n] was verbally applied, namely, that it was fitted with a works re-conditioned engine which had done only 2,000 to 3,000 miles, contrary to section 1 of the Trade Descriptions Act 1968. The matter came before the Cardiff justices in the first instance in November 1972 and they convicted and imposed a fine. The matter was taken thence by way of appeal to the Crown Court, where it was heard on December 15, 1972, and where the appeal was dismissed, thus leaving a finding of guilt against the defendant in regard to this charge. The facts found by the Crown Court, which in those circumstances of course is the fact finding tribunal, were that the defendant and Thomas were partners in the business, and they were both working partners, but they for their own convenience, no doubt, decided to work in this way, that Thomas was responsible for sales of motor vehicles, while the defendant was responsible for administration of the business, these two functions being exclusive. In the vernacular of the day, Thomas was the front man who stood on the forecourt and dealt with customers, and the defendant was mainly concerned in the office, keeping the books and running the administration of the company, but to that extent they were both working partners. The offence, if it was an offence, occurred on January 25, 1972, when Thomas, in the course of his normal duties as the partner on the forecourt dealing with customers, was discussing a car which the company had for sale and which was there. Thomas said quite incorrectly: "There is a new engine in this car. It's done no more than 2,000 to 3,000 miles." The car was then sold; the defendant working in the office had no idea of what was going on. He certainly had not authorised Thomas to make any representation about the car, he was quite unaware that Thomas had made it, and possibly would have been unaware of its falsity even if he knew Thomas had made it. Nevertheless he was convicted by the justices and his conviction was upheld in the Crown Court. The argument for the prosecution, which I must confess I find overwhelming, is this. Under the Trade Descriptions Act 1968, there are provisions in the earlier sections of the Act dealing with the prohibition of applying false descriptions to goods which are sold or supplied in the course of business. Later on in the Act, one comes in section 14 and subsequent sections to a somewhat different code, which deals with the making of false statements in the provision of services. It is perfectly clear that section 14, dealing as it does with the making of a false statement in connection with the supply of services, requires an element of mens rea; in particular, knowledge or means of knowledge of the falsity of the statement. But it is argued, and I think rightly, that no such requirement is to be found in section 1, which is the section under which this offence was charged. Section 1, so far as material, says: "(1) Any person who, in the course of a trade or business, - (a) applies a false trade description to any goods; or (b) supplies or offers to supply any goods to which a false trade description is applied; shall, … be guilty of an offence." The way in which this case is put against the present defendant is that although he did not apply a false trade description because he was in no way a party to the making of the false statement about the re-conditioned engine, yet as a partner in the firm he joined with Thomas in supplying the car, and the car had got a false trade description applied to it, therefore the offence is complete. To my mind that basis of reasoning is totally convincing to show the guilt of the defendant unless one can say that notwithstanding the absence of any reference to mental state or mens rea, there is nevertheless to be implied some element of knowledge or culpability in the terms of section 1. It might have been arguable that that was so but for the fact that Parliament has clearly contemplated the possibility of a man being found guilty under section 1 when he was in no sense really responsible for what happened, and has provided him with a defence under section 24. That defence was not open to the present defendant and we are not told why, but the fact that Parliament provides such a defence for people who are innocent in the sense of not being culpable for what is done under section 1 shows, in my judgment, if any doubt lay, that it is not right to import an element of mens rea into it. Partners carrying on business jointly, jointly supply vehicles which it is the business of that partnership to sell. I cannot see any answer to the proposition that the defendant was a joint supplier. Clearly a false trade description had been applied to the car, and that is sufficient to justify the conclusion of the court below. I would dismiss the appeal. 223 Clode v Barnes thus involved a strict liability offence that was, on the proper construction of the legislation (the Trades Descriptions Act 1968 (UK)), capable of being jointly committed by partners. Secondly, it is important to note that the Court of Appeal had no occasion to consider any defence that may have been available under s 24 of that Act, which provided as follows: "(1) In any proceedings for an offence under this Act it shall, … be a defence for the person charged to prove - (a) that the commission of the offence was due to … the act or default of another person …" In the ordinary case, at least in any case like this one, one would imagine that an innocent partner would be availed by such a defence. For those reasons, the decision is of no assistance to DTT in this case. 224 DTT's reliance on Lord Millett's speech in Dubai Aluminium at 396 [108] is also misplaced. When his Lordship refers to s 10 of the Partnership Act 1890 (UK) being "drafted in the widest terms to embrace every kind of wrong capable of causing damage to non-partners", he was referring to the wide variety of fault-based liability, both at common law and under statute, that the provision picks up. His Lordship's speech says nothing about the circumstances in which the liability of one partner may be imputed to another. 225 DTT also cited Walker v European Electronics Pty Ltd (in liq) (1990) 23 NSWLR 1, but the question in that case was whether the rogue partner was "acting in the ordinary course of the business of the firm" when he committed acts of wrongdoing. It has no relevance to the issues at hand. 226 For those reasons, the Partnership Act provisions do not assist DTT. As Gross LJ succinctly put it in Riley at [33] (in reference to ss 10 and 12 of the Partnership Act 1890 (UK)), these provisions "are concerned with satisfying debts and liabilities for which a partnership has become liable; they do not operate to impose criminal liability where none has otherwise been established".

Sections 307A and 324AB of the Corporations Act 227 DTT's contentions with respect to these provisions may be summarised in this way: (1) if an audit firm conducts an audit, the lead auditor must ensure that the audit is conducted in accordance with the auditing standards (s 307A(2)); (2) if the auditor fails to do so, that constitutes an offence of strict liability (ss 307A(4)); (3) the appointment of a firm as auditor is taken to be an appointment of all persons who, at the date of the appointment, are members of the firm and registered company auditors (s 324AB(1)); (4) for the purposes of criminal proceedings under the Corporations Act against a member of an audit firm, an act or omission by a member of the firm (acting within actual or apparent authority) is to be attributed to the audit firm (s 324AB(5)); and (5) applying those provisions to this case, if Mr Saayman has contravened s 307A(2), his contravening conduct is to be attributed to each and every member of the firm, regardless of their lack of any involvement in the audit, and even if they are not registered company auditors. 228 Sadie Ville submits that s 307A(2) applies where an audit firm, or audit company, conducts an audit or review, but imposes obligations only upon "the lead auditor for the audit or review" to "ensure that the audit or review is conducted in accordance with the auditing standards". Thus, it contends, proceedings for the offence of contravening s 307A(2) can only be brought against the lead auditor. The consideration that the offence is strict liability (see s 307A(4)) does not mean the criminal liability extends to the Uninvolved Partners. It means only "that the offence by the lead auditor is established by proof to the criminal standard that s/he failed to comply with the obligation imposed (ie, the physical element of the offence), with no additional requirement of a fault element on the part of that person". As senior counsel for Sadie Ville said in oral argument, Sadie Ville's pleaded claim against the Uninvolved Partners is that they are "at most" vicariously liable. 229 In our view, Sadie Ville's submissions are correct. The reference in s 324AB(5) to "criminal proceedings under this Act against a member of an audit firm" obviously includes criminal proceedings for an offence under s 307A for a failure to ensure that an audit is conducted in accordance with the auditing standards. The audit can only be conducted, self-evidently, by an auditor or an audit firm. When such criminal proceedings are brought under the Act, the effect of s 324AB(5), as senior counsel for Sadie Ville submitted, "is simply to ensure that things which are done by members of the firm or its employees or agents during the course of the audit are nevertheless made the responsibility of the lead auditor … it's a facultative provision. It assists proof against the lead auditor. It enlarges the scope of personal responsibility of the lead auditor." Put another way, "[t]he lead auditor cannot, in response to an action under [s] 307A, say to the court - it's not my fault, it was done by my employee". 230 It follows, because s 307A does not create the possibility of any offence being committed by anyone other than the lead auditor, that the Uninvolved Partners are at no risk of being prosecuted for a breach of it.

Section 1041E of the Corporations Act 231 DTT next submits that s 1041E of the Corporations Act (as well as misleading conduct provisions giving rise to pecuniary penalties) operates to impose vicarious liability upon partners "for each other's criminal acts", citing Collins v Poole (1977) 2 TPC 173. 232 Section 1041E applies to a partnership by virtue of s 761F which provides that Ch 7 of the Corporations Act applies to a partnership as if the partnership were a person, but that any contravention that would otherwise be a contravention by the partnership "is taken (whether for the purposes of criminal or civil liability) to have been a contravention by each partner who: (i) aided, abetted, counselled or procured the relevant act or omission; or (ii) was in any way knowingly concerned in, or party to, the relevant act or omission …" 233 Sadie Ville submits that "[a]s the primary judge held, to establish such an offence by a partner it is necessary to establish the requisite elements of the offence to the criminal standard, ie, that the partner committed the relevant act or omission with the requisite fault element or was complicit in the commission of the offence by another partner (by aiding and abetting, etc): [Sadie Ville v DTT (No 3)], [107]". Sadie Ville says that that conclusion "is put beyond doubt by s 761F", the effect of which is that: … a contravention of s 1041E is taken to have been a contravention by - and only by - each partner who 'aided, abetted, counselled or procured the relevant act or omission' or who 'was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner)'. In short, a partner will not face a risk of criminal sanction under s 1311(1) for contravention of s 1041E merely by reason of partnership - actual knowing involvement, or aiding, abetting etc must be proved. The same reasoning applies to s 728(3) [of the Corporations Act]. 234 In our view, that submission must be accepted. Here, there is no allegation in the SASOC that any Uninvolved Partner was knowingly involved in, or aided or abetted, or counselled or procured (and so on) anything that Mr Saayman or Mr Moore is alleged to have done. It follows that, by the clear terms of s 761F when read with s 1041E, there can be no finding that any Uninvolved Partner breached s 1041E, because the SASOC makes no direct allegation of any relevant kind against them.

Section 12DB of the ASIC Act 235 DTT also submits that "all partners may be liable for an offence of strict liability" under s 12DB(1) of the ASIC Act (and s 29(1) of the ACLV and s 307A of the Corporations Act). 236 But, prior to the March 2019 amendments, an offence against s 12GB for contravention of s 12DB(1) was taken to have been a contravention by - and only by - each partner who "aided, abetted, counselled or procured the relevant act or omission" or who "was in any way knowingly concerned in, or party to" the relevant act or omission. (Similarly, after the March 2019 amendments to s 12GB, a contravention of s 12DB(1) is taken to be a contravention by - and only by - each partner who was "involved in" the contravention.) Further s 12GB(1) expressly distinguished between a person who contravenes a relevant provision and a person who aids, abets, counsels or procures a contravention. (Similarly, after the March 2019 amendments, an express distinction is made between a person who contravenes a relevant provision and a person who is merely involved.) Again, those provisions make it quite clear that they are not intended to impose criminal liability on persons who were not involved.

Section 151 of the ACLV 237 Finally, as to the ACLV claim, as Sadie Ville submits, the fact that s 151 of the ACLV is a strict liability offence does not render all partners liable to prosecution. The pleaded representations were allegedly made in the course of partnership business, but they are not said to be joint representations. The partners are civilly liable for the consequences of a contravention, but they cannot be said to have jointly made the representations with the lead auditor for the purposes of penal or criminal action.

The Privilege Appeal - Ground 2 (out of time) 238 DTT's next ground of appeal is that the primary judge erred in finding that any pecuniary penalty proceedings for contravention of s 12DB of the ASIC Act or s 29 of the ACLV would in any event be out of time, because more than six years has elapsed since the relevant events. 239 On that point, the primary judge reasoned as follows (Sadie Ville v DTT (No 3) at [109] and [111]): 109. In relation to prosecution for contravention of s 12DB of the ASIC Act and/or s 151 of the ACLV, I proceed for present purposes on the basis that a prosecution would not be out of time. While the relevant provisions (namely, s 12GB(6) of the ASIC Act and s 212 of the ACLV, set out above) are not expressed in the same terms as the provision considered in [Attorney-General (Cth) v Oates (1999) 198 CLR 162] - in particular the words 'Despite anything in any other law', which were important in the reasoning of the High Court in Oates, are not present - it is at least arguable that the provisions are facultative and not restrictive. Provisions with similar wording to s 12GB(6) and s 212 were considered in Comptroller-General of Customs v Parker (2006) 200 FLR 44 at [59]-[67] and Seeto v The Queen [2008] NSWCCA 227 at [43]-[44]. In each case, it was held that the provision was facultative, not restrictive. … 111. In relation to pecuniary penalty proceedings for contravention of s 12DB of the ASIC Act and/or s 29 of the ACLV, I consider that any such proceeding would be out of time … Each of these provisions adopts the same form as s 77 of the Trade Practices Act 1974 (Cth) … The first subsection confers a power to bring a proceeding for the recovery of a pecuniary penalty, and the second subsection stipulates a time within which such a proceeding may be commenced. It has been held by a Full Court of this Court that s 77(2) operates as a limitation period: Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (2016) 244 FCR 190 at [522], [547]; see generally at [526]-[547]. That reasoning is, in my view, applicable to s 12GBC of the ASIC Act and s 228 of the ACLV. These provisions are unlike the provision considered in [Attorney-General (Cth) v Oates (1999) 198 CLR 162], and the provisions considered in Comptroller-General of Customs v Parker and Seeto v The Queen, as they involve both a conferral of power to bring a proceeding of a certain character and the stipulation of a time within which such a proceeding may be commenced. Given that more than six years has elapsed since the relevant events, I consider that a pecuniary penalty proceeding would be out of time. 240 We note that the primary judge's reasons (delivered on 26 July 2018), and the submissions of the parties summarised below, address s 12GBC of the ASIC Act as it stood prior to 13 March 2019.

DTT's submissions summarised 241 DTT submitted that the primary judge was wrong to rely on the decision of the Full Court in Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (2016) 244 FCR 190 (Garuda) at [522] and [547], where it was held that s 77 of the Trade Practices Act 1974 (Cth) (Trade Practices Act), a provision relevantly identical to s 12GBC of the ASIC Act and s 228 of the ACLV, was a limitation provision (not a condition precedent to the exercise of power). 242 In summary, DTT's contentions that those sections do not operate as limitation provisions were as follows: (1) The ACCC in Garuda accepted that the pecuniary penalties there under consideration were time barred, so there was no relevant dispute about the point (citing Garuda at [520]). (2) Garuda "was not invoked by Sadie Ville and [DTT] had no opportunity to address it". (3) The conclusion of the primary judge is inconsistent with the reasoning in Attorney-General (Cth) v Oates (1999) 198 CLR 162 (Oates); Comptroller-General of Customs v Parker [2006] NSWSC 390; (2006) 200 FLR 44 (Parker) at [59]-[67] and Seeto v The Queen [2008] NSWCCA 227 (Seeto) at [4]-[11], [32]-[44], cases which: (a) were not raised before the Full Court in Garuda, (b) dealt with provisions which provided that relevant proceedings "may be instituted" or "may be taken" within specified periods, and (c) held that such provisions were "facultative" and did not operate as time bars. (4) Such a conclusion would involve reading provisions in the same Division of the same Act, namely s 12GB(6) ("A prosecution for an offence against subsection (1) may be commenced within 3 years after the commission of the offence") and s 12GBC(2) ("A proceeding under subsection (1) may be commenced within 6 years after the contravention"), differently - the former operating in a "facultative" way, the latter as a time bar.

Sadie Ville's submissions summarised 243 Sadie Ville contended that the primary judge was correct to conclude that pecuniary penalty proceedings for contravention of s 12DB of the ASIC Act or s 29 of the ACLV would be out of time (and that prosecutions for offences under s 307A or s 1041E of the Corporations Act, s 12DB of the ASIC Act and s 151 of the ACLV would not be). 244 In summary, Sadie Ville's submissions were as follows: (1) The High Court's reasoning in Oates "stems from the foundational proposition" that there is no time limit for the commencing of a prosecution unless statute so provides, citing Jago v District Court (NSW) (1989) 168 CLR 23 at 41 (Brennan J) (see Oates at [9]). (2) The purpose of the provision under consideration in Oates (s 1316 of the Corporations Law, "Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister's consent, at any later time") was to extend the time within which a proceeding may be brought if it was otherwise subject to a shorter limitation period - that is, it operated to extend shorter limitation periods, but not abbreviate longer ones. (3) There is no facultative work for s 12GBC(2) of the ASIC Act or s 228(2) of the ACLV to do because they govern pecuniary penalty provisions, not provisions like those in issue in Parker, Seeto, and Oates under which proceedings could be brought summarily or by indictment, and which were or may have been subject to different limitation periods from time to time. (4) Thus, if s 12GBC(2) of the ASIC Act or s 228(2) of the ACLV have any work to do, it "must be to set the time limit to act as a limitations period in the traditional sense". (5) Although the issue was agreed by the parties in Garuda, the limitations point was the subject of detailed reasons, directly applicable here to a provision in relevantly identical terms to those at issue in this case, citing Garuda at [522] and especially at [526]-[547]. (6) The Full Court's detailed reasons in Garuda in support of the proposition that s 77(2) of the Trade Practices Act ("A proceeding under subsection (1) [for a pecuniary penalty] may be commenced within 6 years after the contravention") is a limitation provision should be applied here.

Consideration 245 As noted above at paragraph [153], s 12GBC(2) of the ASIC Act (which provided that ASIC may bring a proceeding for recovery of a pecuniary penalty within six years after the relevant contravention) was replaced on 13 March 2019 by s 12GBB(2) (which provides that ASIC must bring the proceeding within six years). However, given our conclusion below - that the old provision did not permit ASIC to bring a proceeding to recover a pecuniary penalty more than six years after the relevant contravention - it is unnecessary to consider the relevance of the new provision, if any, to this case. 246 In our view, Sadie Ville's submissions must be accepted. The decision of the High Court in Oates, and the other cases cited by DTT, involved differently worded provisions, and were intended to fulfil a different purpose. As Price J (Giles JA and Rothman J agreeing) explained in Seeto at [44]: The Crown drew attention to [Oates]. Section 1316 of The Corporations Law, applying as part of the law of Western Australia, provided that 'Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of five years after the act or omission alleged to constitute the offence …' The respondent was charged with indictable offences against the Law, alleged to have been committed more than 5 years prior to the institution of the proceedings. It was held that s 1316 was facultative, operating to extend the twelve month period for the commencement of proceedings for offences punishable by summary conviction, and did not limit the commencement of proceedings for indictable offences. This construction of s 1316 was reached in the light of (i) the introductory words 'Despite anything in any other law…'; (ii) the word 'may'; (iii) the perceived mischief that many summary offences could not be prosecuted if the twelve month period applied; and (iv) the legislative history whereby functional predecessors to s 1316 were enacted in order to deal with that mischief. Not all these matters are found in the present case, but the decision provides some support for the conclusion expressed in the preceding paragraph. 247 Other than the fact that the word "may" is used in s 12GBC(2) of the ASIC Act and s 228(2) of the ACLV (as it was in s 77(2) of the Trade Practices Act), none of those matters has any possible bearing here. Further, the words "Despite anything in any other law …", which do not appear in either section, are obviously critical to the conclusion reached by the High Court in Oates that s 1316 of the Corporations Law was facultative, not restrictive, because it authorised the commencement of proceedings, including summary proceedings, which would otherwise have been time barred. As Simpson J explained in Parker at [62]: The High Court [in Oates] … examined the complex interplay of State and Federal statutory provisions of which s 1316 was a part. It concluded that s 1316 was a "facultative" provision and did not create a statutory limitation. As I read the judgment, of some significance in the Court's reaching this conclusion were the opening words of the section: Despite anything in any other law … That was because, by other statutory provisions, time limits of less than five years were imposed in respect of the bringing, in certain courts, of some summary prosecutions under the same law. Section 1316 therefore had the effect of extending the time for prosecution, summarily, of those offences, that otherwise would have been statute barred by reason of provisions applicable to particular courts … 248 It is true, as counsel for DTT contended, that reading s 12GBC(2) of the ASIC Act in the way that we do means that a similarly worded provision in the same Division of the Act dealing with prosecutions, like s 12GB(6), is to be read differently. But, in our view, unless s 12GBC(2) of the ASIC Act and s 228(2) of the ACLV are read, consistently with the views expressed by the Full Court in Garuda, as imposing a time limitation on the bringing of an action for a pecuniary penalty, then, as counsel for Sadie Ville submitted, those provisions would have no work to do. 249 It follows that because the time limits of six years have expired in this case, there can be no risk of any DTT partner being exposed to a pecuniary penalty for any contravention of s 12DB of the ASIC Act or s 29 of the ACLV.

The Privilege Appeal - Ground 3; the Discharge Appeal - Grounds 1-2 ("control" of the Engagement Documents)

The Privilege Appeal - Ground 3 250 DTT submits that the primary judge erred in finding that the documents in question were in the control of the DTT partners other than Mr Saayman, including because "[t]here was no evidence to support that positive finding at the hearing on 29 June 2018". 251 DTT points to Mr Lee's evidence in chief that the Engagement Documents could only be accessed with the consent of Mr Saayman and a member of [DTT's] in-house litigation team: see [6] of the Third Lee Affidavit set out at [180] above. As senior counsel for DTT put it in oral argument, "the material, we say, quite clearly established that it was Mr Saayman who, as the engagement partner or audit partner, was the person who had the custody of the audit file at the conclusion of the audit". 252 DTT also submits that in making the Production Order the primary judge proceeded on the basis that all of the Uninvolved Partners had control, including partners who are now former partners (Sadie Ville v DTT (No 4) at [5]), and that there was "no evidentiary basis for such a positive finding before the Court …" 253 DTT says that that finding is wrong because: The proceeding is brought against all of the partners of the firm at the relevant time or times, which extend back to 2010. As has been observed, the "First Respondent" is comprised of some former and some present partners. For example, it could not seriously be said that a long since retired-partner from the Perth office could knock on the door of an East-coast office and demand access to another person's client files, remove those documents and log-on to a computer and copy files. From its own experience, this Court would know that the idea that a long-since departed former partner could show-up at the office and have a right to possession of any client file of any of their former partners is far-fetched.

The Discharge Appeal - Ground 1 254 DTT submits that the primary judge's "inquiry … as to which he wanted a 'detailed explanation'" of how Mr Saayman had come into possession of the Engagement Documents "suffered from numerous vices". The principal so-called "vices" referred to in DTT's written submissions were as follows. 255 First, DTT submits that the inquiry "was completely irrelevant to any issue of 'control'" because a person will not have "power" sufficient to give discovery of a document if it is necessary for the person to obtain the consent of anyone else to inspect the document (citing Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 (Lonrho) at 635-636 (Lord Diplock); Taylor v Santos Ltd (1998) 71 SASR 434 (Taylor) at 438 (Doyle CJ, Prior J agreeing)). DTT also submits that a person will not have "power" sufficient to produce the document for inspection if that person cannot exercise the power unilaterally (such as where the property is jointly owned with someone else) (citing Taylor at 438). DTT says: Thus, for any one of the individual Uninvolved [Partners] to have 'power' in respect of the relevant documents, that 'power' must be exercisable by that individual person unilaterally and without requiring the involvement or consent of any other persons. Hypothetically speaking, even if some Uninvolved Partner opened a door (which, to be clear, is certainly not accepted) that does not mean they have a legal right to possession of the files in Mr Saayman's possession. In no sense could 'how Mr Saayman obtained the documents' be relevant to whether, having obtained them, someone had a unilateral legal entitlement to the documents. (Emphasis in original.) 256 Secondly, DTT submits that the primary judge's inquiry was irrelevant because "[o]n well-established principles arising from the nature of the privilege, how a person entitled to the privilege happened to obtain exclusive possession of the documents is irrelevant" (citing Griffin v Sogelease Australia Ltd (2003) 57 NSWLR 257 (Griffin)). DTT submits that that decision highlighted that the privilege against self-incrimination is not "subject to 'judge-made exceptions or qualifications'" and that someone entitled to the privilege in respect of certain documents (like Mr Saayman) cannot be compelled even indirectly to disgorge them to someone who had legal title to them. 257 Thirdly, DTT submits that the primary judge's inquiry was irrelevant because "it is well established that the privilege extends to protect a person against a requirement that he or she reveal the whereabouts of incriminating documents or explain anything about them", citing Griffin at [42]. 258 Fourthly, DTT submits that "the primary judge speculated that there may be other copies of some of the documents forming part of the Engagement Files which could be produced ([Sadie Ville v DTT (No 5)] [58]ff.)" and that such "speculation" "involved an erroneous view of the Production Order", which did not require production of any copies because the order to produce the "audit files … and working papers … was not an order for standard discovery in r 20.14. It was for discovery of specific things …"

The Discharge Appeal - Ground 2 259 DTT submits that the primary judge "erred in not excusing the Uninvolved Partners from complying with the Production Order either in whole or in part in circumstances where none of the Uninvolved Partners has been found to have control over any document the subject of the Production Order or any document referred to in [Sadie Ville v DTT (No 5)] [58], [60] to the exclusion of Involved Partners whose claims for privilege were upheld ([Sadie Ville v DTT (No 5)] [65], [67]-[68])". 260 DTT says that the Uninvolved Partners should have been excused, because a valid claim for privilege against self-exposure to penalty that had been raised by some of the joint owners of the documents in question should not in practice be defeated because other joint owners had raised no such objection (citing dicta to that effect in Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 at 696 (Franki J)). Relatedly, DTT also relies on the proposition that a single partner is not liable to produce documents of the partnership, citing Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 139 for the proposition that "one partner has been held not compellable to produce books which were partnership property when the other partners would not consent to their production".

The Privilege Appeal - Ground 3 261 Sadie Ville submits that DTT's submission that there was no evidence for the primary judge's finding that the Engagement Documents were in the control of any DTT partner other than Mr Saayman must be rejected in substance because: (1) the submission entirely overlooks the evidence in the First Lee Affidavit that the documents set out in Pt 2 of the List of Documents "are in the control of the First Respondent" (see Sadie Ville v DTT (No 3) at [8], [22], [69], [116]); and (2) that evidence was sufficient to sustain the finding made by the primary judge, and it was never relevantly qualified.

The Discharge Appeal - Ground 1 262 Sadie Ville submits that DTT misunderstands the nature of the Discharge Application. It says that, because DTT was seeking to vary or set aside the Production Order, the issue of control was not to be determined afresh as if the primary judge had not already made a finding that the Uninvolved Partners had control of the Engagement Documents. Rather, it submits, it was necessary for DTT to show a material change of circumstances since the original application was heard, or to be able to point to the discovery of new material which could not reasonably have been put before the court on the hearing of the original application, in order to justify a departure from that finding and a variation of the Production Order (citing Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304 at [32]; Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46-47). 263 Sadie Ville submits that DTT therefore bore the onus of establishing that that finding was wrong or, at least, was no longer correct and that it failed to do so. It submits that "[i]n light of the extraordinary circumstances revealed on the Discharge Application" the primary judge was undoubtedly correct to find that he "was not satisfied on the further evidence that the Uninvolved Partners were unable to produce the Engagement Documents: [Sadie Ville v DTT (No 5)], [57]". 264 Sadie Ville also says that there is no merit in DTT's other submission that, because Mr Saayman has seized the Engagement Documents and refuses any Uninvolved Partner (or any partner at all) access to them (in electronic form or the physical manila set), the Uninvolved Partners have no "power" to produce them. In essence, Sadie Ville says that the cases cited by DTT (Lonrho and Taylor) are beside the point because, quite apart from the position at general law concerning the ordinary rights of partners to partnership property, each of the Uninvolved Partners (who form a majority on DTT's board of directors) has extensive rights under the DTT partnership deed to require Mr Saayman to return or make accessible to them partnership property, including the Engagement Documents. Members of the board of DTT must under the terms of the deed, and by virtue of the Production Order, "exercise their discretions, their powers, their abilities as respondents to the order, to take the steps available to them to get this material back, to vote in a particular way at board meetings, to call a board meeting, to give a direction to Mr Saayman and, if necessary, to expel [him] and say, 'We want our property back'". Sadie Ville cites the following clauses of the partnership deed in support of that proposition: (1) "The Firm Property is owned by the Equity Partners in their Pro-rata Portions" (cl 4.1(a)); (2) "A Partner is not entitled to require: (i) the realisation or distribution of the Firm Property; or (ii) for the Firm Property to be otherwise dealt with, except as expressly contemplated by this contract" (cl 4.1(b)); (3) "The Firm Property must be used or applied only for the benefit of the Firm and in accordance with this contract" (cl 4.1(d)); (4) "The Chairperson and any 3 Elected Board Members who are entitled to vote at Board meetings may call a general meeting of the Partners" (cl 6.2(a)); (5) "The Firm must have a board … [which] has the power to do everything necessary or convenient to be done for or in connection with the performance of its functions" (cl 7.1); (6) "The Firm Property must so far as practicable be vested in a Deloitte Entity nominated by the CEO to hold upon trust for the Equity Partners and subject to the direction of the Board or the CEO, as the case requires" (cl 7.12(a)); (7) "An Auditor or Reviewer … has a right of access at all reasonable times to the Books of each Group Member …" (cl 10.8 (a)); (8) A Partner may be expelled if, among other things, "the Partner wilfully disobeys a lawful and reasonable direction of the CEO …" (cl 11.2(g)); (9) "To the extent permitted by law, each Partner must answer all questions put to him or her by the CEO or the Board in relation to any Group Businesses, notwithstanding that doing so may incriminate the Partner" (cl 12.15(b)); (10) "A Board Member … may inspect or otherwise have access to the Books of the Group (including its Financial Records) at all reasonable times for any purpose … including for the purposes of a legal proceeding" (Sch 7, cl 6.1); and (11) "A person who has ceased to be a Board Member may inspect the Books of the Group (including its Financial Records) at all reasonable times for the purposes of a legal proceeding" (Sch 7, cl 6.2(a)). 265 Sadie Ville submits that DTT's reliance on Lonrho and Taylor for the proposition that "power" means a presently enforceable legal right to inspect the documents without the need to obtain the consent of another "is a complete misreading" because "[i]f consent were required then there would be no need for an enforceable right. The whole point of enforceability is to override consent. Thus the test is satisfied where there is an enforceable legal right to inspect the documents regardless of the consent of the other person". Sadie Ville points out that both Lonrho and Taylor concerned respondents to a discovery order who had no anterior rights over the documents in question (citing Lonrho at 633-634; Taylor at 436, 438) and that in this case "[b]y contrast … the Uninvolved Partners (at least those who are current partners) are co-owners of the Engagement Documents". Accordingly, Sadie Ville submits, the Uninvolved Partners retain "power" over the Engagement Documents because their rights of co-ownership give them a presently enforceable legal right to the documents, even in the face of objection from Mr Saayman, whose claim to PSI does not entitle him to override the pre-existing property rights of his co-owners. 266 As for DTT's reliance on Griffin, Sadie Ville submits that it "reflects a fundamental misunderstanding of the nature of PSI. PSI protects a person with a bona fide claim from producing documents pursuant to some compulsory process such as an order for discovery, summons for production or other statutory notice" (citing Griffin at [30]). The submission continued: None of the cases cited by DTT suggest that PSI is a defence to the enforcement of antecedent proprietary rights, for instance by action in detinue, or indeed contractual rights of the kind involved in enforcement of a partnership deed. Mr Saayman's claim to PSI is no answer to his partners' demand for return of their property, being the manila set or the Produced Laptop, or their contractual right via the Board and the CEO to require disclosure of the password(s) to the Encrypted Files, even if the result might be to put those partners in a position to comply with court orders for production, leading in turn to a risk of criminal or penal action against him. (Emphasis in original.) 267 Sadie Ville also submits that Griffin is irrelevant because it held only that the New South Wales Supreme Court's procedural power under s 76A of the Supreme Court Act 1970 (NSW) to give directions for the conduct of the proceedings was not intended to impact on substantive rights, and did not allow the discovery process to be used to make an order compelling a defendant who has a valid claim to PSI to produce documents to another defendant, the co-owner of the documents, in order to procure discovery by that co-defendant. 268 Sadie Ville further contends that "contrary to DTT's submission, Griffin is not authority for the proposition that 'how a person entitled to the privilege happened to obtain exclusive possession of the documents is irrelevant'". 269 As for DTT's submission that it is "well established" that PSI extends to protect a person from revealing the whereabouts of incriminating documents or explaining anything about them, Sadie Ville says that this is so in the context of a compulsory process, like discovery, but points out that PSI is not a defence to the substantive anterior rights of co-owners or contract counterparties to require such information. 270 As to DTT's submission that the Production Order only required discovery of the original audit and review files that were statutorily required to be kept - that is, the manila set that is now in the custody of Mr Saayman - and not copies or partial copies of those files, Sadie Ville submits that such a submission "begs the questions of why Mr Saayman took the steps of removing the hard copies and laptop from the Litigation Room, and encrypting the copies on the firm's server, or why DTT led evidence of attempts to crack the password. The answer is that the submission is unwarranted, and places a late and unwarranted gloss on the Production Order". In any event, Sadie Ville submits, although copy documents are not discoverable only because the original is discoverable (per r 20.18 of the Federal Court Rules), where the original is no longer within the party's control an available copy should be discovered (citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 509-510; Theodore v Australian Postal Commission [1988] VR 272 at 277, 279; Clone Pty Ltd v Players Pty Ltd (in liq) (2016) 127 SASR 1 at [6], [9], [185], [423]-[424]).

The Discharge Appeal - Ground 2 271 Sadie Ville submits that DTT's reliance on Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 and the dicta of Gibbs CJ in Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 139 is misplaced, and says that in both instances the primary judge explained correctly why that is so. As to the former, see Sadie Ville v DTT (No 5) at [66]-[68], and as to the latter see Sadie Ville v DTT (No 3) at [116]-[117].

Consideration 272 Ground 3 of the Privilege Appeal has no merit. The proposition that there was no evidence for the primary judge's finding that the Engagement Documents were in the control of any DTT partner other than Mr Saayman, as Sadie Ville submitted, entirely overlooks the evidence in the First Lee Affidavit that the documents set out in Pt 2 of the List of Documents "are in the control of the First Respondent". Again, as Sadie Ville submitted, in circumstances where that evidence was clearly sufficient to sustain the finding made by the primary judge, and it was never relevantly qualified, Ground 3 must fail. 273 We turn next to Ground 1 of the Discharge Appeal. 274 It is well established that the discretion conferred by r 39.05 of the Federal Court Rules to set aside interlocutory orders once entered should be exercised in a judicial manner and only in exceptional circumstances. That is so because of the "principle of finality of litigation which counsels courts to exercise caution when considering whether orders previously made and final on their face and entered should be re-opened for consideration and set aside": Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 at [53]. 275 In Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304, Besanko J cited with approval the following passage from the judgment of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46-47: The private injustice and public undesirability of permitting the relitigation of matters already litigated once is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel, the more flexible rules under the rubric of vexation and abuse of process … and the restrictive provisions governing the adducing of further evidence on the hearing of an appeal even by way of rehearing … Interlocutory 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. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will. The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature … and injunctions (or undertakings) made or given by agreement and without contest 'until further order' … In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application … (Emphasis added.) 276 In our view, it is plain that DTT's attempt to re-litigate the Production Order was bound to fail. This is because DTT did not adduce evidence of a material change of circumstance about the critical question of whether the Uninvolved Partners have control of the Engagement Documents. And no contention was ever ventured that DTT had discovered "new material" which could not reasonably have been put before the primary judge on the hearing of the original application. 277 Each of the three witnesses called by DTT to give evidence in support of the Discharge Application were ill-equipped to answer questions about DTT's claim that they no longer have control of the Engagement Documents seized by Mr Saayman (or any copies of them not in his custody). 278 By the end of the hearing of the Discharge Application, DTT's case confronted a number of factual difficulties, including the following: (1) when the order for discovery was made (5 March 2018) and Mr Lee made his first affidavit a month later, affirming that the Engagement Documents were "in the control of the First Respondent [DTT]", the Engagement Documents were stored in the secure Litigation Room in the firm's Sydney offices, access to which was limited to swipe cards authorised by the in-house litigation team (Sadie Ville v DTT (No 5) at [14], [43], [54]); (2) it was Mr Lee's "responsibility to keep [the Engagement Documents] in a place and in a form that made them accessible to him, acting on behalf of the first respondent" (Sadie Ville v DTT (No 5) at [21]); (3) DTT did not lead any evidence as to when or how the Engagement Documents were removed from the Litigation Room or "conveyed" to Mr Saayman in contravention of the internal procedure that Mr Lee described, involving the quarantining of files in the Litigation Room so that they could be accessible to other partners (Sadie Ville v DTT (No 5) at [55]); (4) neither Mr Lee nor Mr Murray had made or knew of any inquiries to ascertain how this was allowed to happen (Sadie Ville v DTT (No 5) at [44], [48], [55]); (5) no request had ever been made by the Uninvolved Partners for the return of the Produced USB (Sadie Ville v DTT (No 5) at [15(e)], [58(b)]); and (6) no attempt had been made to locate images of the laptop computers of Mr Saayman and Mr Moore (Sadie Ville v DTT (No 5) at [15(g)], [16], [58(c)]). 279 It is also curious, to say the least, that the only Uninvolved Partner called to give evidence in support of the contention that none of them has relevant control of the Engagement Documents, Mr Murray, was not aware of the CEO or the board of the firm taking any action to get the audit files back from Mr Saayman; had not made any inquiries as to when the encryption was applied to the files; and had not spoken to the CEO, any member of the board, or any person within the IT department, about what could be done to break the encryption. 280 Mr Taylor was called to testify, we would have thought absurdly, that it would take 12,600 years to break the encryption that Mr Saayman had applied to the files, in aid of a submission that the Uninvolved Partners did not "control" the documents. However, his evidence was also bound to be less than useful given that he is not part of the firm's IT services team, has no knowledge of the firm's IT infrastructure, has no familiarity with the firm's backup systems, has no knowledge of whether IT personnel at the firm control access to servers and backup systems and has no experience of gaining access to backup systems. 281 Further, presumably because he had not been instructed to, Mr Taylor made no inquiries as to whether there are other copies of the audit file anywhere on the network that have not been encrypted by Mr Saayman, and had not looked for documents that contain copies of the audit file or copies of parts of the audit file. 282 One would have thought that the inquiries not made by Messrs Lee, Murray and Taylor would have been the starting point for the mounting of a case to persuade the judge to discharge a binding order of the court, but they were never made. 283 DTT also relied on the email correspondence set out at [182]-[189] above between Mr Saayman and Mr Murray as "evidence" of the want of control by the Uninvolved Partners over the Engagement Documents. But this correspondence was the product of DTT's external lawyers, and an obvious contrivance on which the learned primary judge was entitled to place no weight. 284 In any event, given the terms of the DTT partnership deed which are set out in detail above at [264], it is clear, and one would have thought unsurprising, that the Uninvolved Partners, or some of them, are empowered by the express terms of the deed to demand that Mr Saayman provide access to the documents over which he asserts exclusive "control", and that he be dismissed from the partnership if he fails to do so. Given the powers vested in the CEO, the board and the partners of the firm, it beggars belief that the Uninvolved Partners apparently choose to accept without question Mr Saayman's assertions in his 5 September 2018 email that "[t]he physical files and back up disks have been locked up securely and only I have the keys to these records"; "[t]he electronic files have been password protected and only I know the password to these files"; and "I am not intending to give anyone access to any of these records", as if that were the beginning and the end of the matter. 285 No attempt has been made by the CEO, the board or any DTT partner to enforce the unequivocal terms of the DTT partnership deed. Their apparent disinclination to do so is reason enough to reject Grounds 1 and 2 of the Discharge Appeal. 286 In those circumstances, it is unnecessary to deal with the other submissions made by DTT with respect to those grounds. 287 We should, however, deal with DTT's submission that the terms of the Production Order do not require it to produce copies, even in circumstances where it is admitted that the originals are beyond relevant control. In our view, that submission must be rejected. It is obviously wrong. Where an original document is no longer within the party's control, because it is lost or because of the more unusual circumstances involved in this case, then absent any legitimate claim to privilege over any copy, of course an available copy must be produced: see Paul Matthews and Hodge M Malek, Disclosure (Sweet & Maxwell, 4th ed, 2012) at [11.36].

The Privilege Appeal - Ground 4 (orders against unnamed individuals) 288 DTT's final ground of appeal is that the primary judge "erred in finding that production orders could be made other than in the name of the individuals who are purported to be the subject of the order ([Sadie Ville v DTT (No 4)] [4])". 289 It will be recalled that the Production Order is directed to "[DTT], other than Mr Saayman and any other partner directly involved in the relevant engagements". 290 The primary judge rejected the contention that forms the basis of this ground in Sadie Ville v DTT (No 4) at [4] as follows: … I do not consider this argument to have merit. The proceeding is in substance brought against each of the partners of DTT at the relevant time or times. While DTT has not been required to produce a list of those partners, it could be required to do so, and presumably knows who they are. An order that applies to the partners of DTT other than Mr Saayman and any other partner directly involved in the relevant engagements, is in substance the same as an order that names the individual partners of the firm other than Mr Saayman and any other partner directly involved in the relevant engagements. In my view, an order that applies to DTT other than Mr Saayman and any other partner directly involved in the relevant engagements, is sufficiently clear. It is also less cumbersome than an order naming all of the individual partners. Further, in circumstances where the parties were required to provide proposed orders to give effect to the Reasons, if DTT considered it necessary to name each individual partner, the firm should have provided a form of order that included all of their names, to assist the Court in giving effect to the Reasons. However, they did not do so. In the circumstances, I consider that an order for production can be framed against DTT other than Mr Saayman and any other partner directly involved in the relevant engagements. 291 DTT submits that the primary judge erred in so reasoning. It says that although the proceeding is brought in the partnership name pursuant to r 9.41 of the Federal Court Rules, "the proceeding is in fact brought against all of the partners of the firm at the relevant time or times. There is no provision in the [Federal Court Rules] which would permit an order to be entered, [or] enforced, against any legal persons comprising a subset of the partners of a firm at a past time by the adoption of a firm name. A rule allowing proceedings to be brought in the name of a firm (and here, to be noted, the firm as comprised at a past time) does not enable an order or judgment to be made in the name of the firm and such a judgment or order is improper: cf. Bishop v Chung Brothers (1907) 4 CLR 1262. Rather, any order must name the particular person(s) who are required to produce the documents in question". DTT says that the court "cannot make orders against a fiction - something which does not exist and has no legal personality - no matter how convenient it is thought to be". 292 Sadie Ville submits that the question raised in respect of this ground of appeal "is not a question of substance or power, but an unmeritorious question of form". 293 Sadie Ville relies on s 23 of the Federal Court of Australia Act 1976 (Cth), which provides that the court may make such orders as it thinks appropriate in the exercise of its jurisdiction, and says that the court's procedures authorise references to partners via the description of a firm: Federal Court Rules, r 9.41. Sadie Ville says, as the primary judge held, that "the form in which the Production Order is made is in substance the same as one that names all of the DTT partners other than Mr Saayman and any other partner directly involved in the Engagements, and is far less cumbersome: [Sadie Ville v DTT (No 4)], [5]. Contrary to DTT's submissions, the Court has not made an order against a fiction. It has made an order against individuals described in a manner expressly authorised by the Rules, leaving no uncertainty as to who is bound or not bound. There is no error in that approach". 294 In our view, no error of the type alleged by DTT is demonstrated, and the reasons given by the primary judge for making the order in the form that it was made are correct.

CONCLUSION 295 Leave to appeal will be granted, and the appeals will be dismissed, with costs. I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Markovic and O'Callaghan.

Australian Consumer Law Consumer Protection Act 1969(NSW)ss 32, 32(3)

Trade Practices Act 1974(Cth)ss 77, 77(1)

(Cth), the Australian Securities and Investments Commission Act 2001(Cth)

Consumer Protection Act 1969(NSW)

(the Corporations Act), the Australian Securities and Investments Commission Act 2001(Cth)

Fair Trading Act 1999(Vic)

Fair Trading Amendment (Australian Consumer Law) Act 2010(Vic)

Australian Securities and Investments Commission Act 2001(Cth)ss 5(2)(a), 12DB, 12DB(1), 12DB(1)(a), 12DB(3), 12GB, 12GB(1), 12GB(1)(a), 12GB(6), 12GBA, 12GBA(1), 12GBB, 12GBC, 12GBC(1), 12GBC(2), 12GF, 12GM

Corporations Act 2001(Cth)ss 307A, 307A(2), 307A(4), 324AA, 324AB, 324AB(1), 324AB(3), 324AB(5), 324AF(1), 728, 729, 761F, 1041E, 1311, 1311B, 1325, Pt2M.3

Federal Court Rules 2011(Cth)rr 9.41, 39.05, 39.05(c)

Partnership Act 1892(NSW)ss 10, 10(1), 12

Partnership Act 1958(Vic)ss 14, 14(1), 16

Cases cited: Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (2016) 244 FCR 190 Bishop v Chung Brothers (1907) 4 CLR 1262 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Clode v Barnes [1974] 1 WLR 544 Clone Pty Ltd v Players Pty Ltd (in liq) (2016) 127 SASR 1 Collins v Poole (1977) 2 TPC 173 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Comptroller-General of Customs v Parker [2006] NSWSC 390; (2006) 200 FLR 44 Dubai Aluminium Co Ltd v Salaam [2002] All ER (D) 60 (Dec); [2003] 2 AC 366 Griffin v Sogelease Australia Ltd (2003) 57 NSWLR 257 Jago v District Court (NSW) (1989) 168 CLR 23 Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304 Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 Parsons v Barnes [1973] Crim LR 537 Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 Reid v Howard (1995) 184 CLR 1 Riley and others v Director of Public Prosecutions [2016] EWHC 2531; [2017] 1 WLR 505 Rochfort v Trade Practices Commission (1982) 153 CLR 134 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (2017) 123 ACSR 223 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 3) (2018) 357 ALR 695; FCA 1107 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 4) [2018] FCA 1218 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 5) [2018] FCA 2066 Seeto v The Queen [2008] NSWCCA 227 Strother v 3464920 Canada Inc [2007] 2 SCR 177 Taylor v Santos Ltd (1998) 71 SASR 434 The Attorney-General of the Commonwealth v Oates (1999) 198 CLR 162 Theodore v Australian Postal Commission [1988] VR 272 Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 W. Stevenson & Sons (A Partnership) v R [2008] EWCA Crim 273 Walker v European Electronics Pty Ltd (in liq) (1990) 23 NSWLR 1

Section 151 of the Consumer Law 37 The Consumer Law is the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied to the State of Victoria by Part 2.2 of the Australian Consumer Law and Fair Trading Act 2012 (Vic). 38 Subsection 151(1)(b) of the Consumer Law is in similar terms to subs 12DB(1)(a) of the ASIC Act. It relevantly provides that a "person" commits an offence if the person, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services, makes a false or misleading representation that services are of a particular standard, quality, value or grade. Subsection 151(4) of the Consumer Law provides that the offence in subs 151(1) is a strict liability offence. 39 Unlike in the case of s 1041E of the Corporations Act and subs 12DB(1)(a) of the ASIC Act, there is no provision in the Consumer Law which provides that a partnership may be a "person" for the purposes of subs 151(1) or any other provision of the Consumer Law. Nor is there anything in the text, context or purpose of s 151 or the Consumer Law generally that would compel the conclusion that a partnership can be a person for the purposes of that section, or that s 151 may apply to a partnership as an independent legal entity: cf. Stevenson & Sons at [29]; see also Bishop v Chung Brothers (1907) 4 CLR 1262 at 1267. There is no doubt that a body corporate may be a "person" for the purposes of s 151, and indeed subss 151(5) and 151(6) provide for different penalties depending on whether the offence is committed by a body corporate or a person other than a body corporate. There is no similar provision in relation to offences committed by a partnership. Nor is there any provision in the Consumer Law which imposes any restriction on the assets that could properly be available to meet any penalty imposed on a partnership, a factor which was considered important in Stevenson & Sons (at [29]-[30]) if a criminal statute was to be construed as permitting a charge to be laid against a partnership. 40 In all the circumstances, the proper construction of s 151 of the Consumer Law is that a partnership is not a "person" for the purposes of that section and therefore a partnership cannot commit an offence under that section. 41 In those circumstances, on what possible basis could it be said that any of the uninvolved partners, being partners who were not in any way involved in, or even knew about, the relevant audits, made any allegedly false or misleading representations in the relevant audit reports for the purposes of s 151 of the Consumer Law? The relevant provisions in Pt 2M.3 Div 3 of the Corporations Act relating to audit reports make it tolerably clear that it is the "lead auditor", or the auditor who conducts an audit, who is responsible for audit reports, not that person's firm. That may suggest that, at least for the purposes of offence provisions, such as s 151 of the Consumer Law, any false or misleading representations in an audit report could only be said to be made by the lead auditor, or the auditor who conducted the audit, not their firm. That said, s 324AA of the Corporations Act makes provision for the appointment of a firm as auditor and subs 324AB(1) of the Corporations Act provides that when a firm is appointed auditor, the effect is that all members of the firm who were registered company auditors at the time of the appointment are taken to be appointed. Subsection 324AB(3) of the Corporations Act also provides that an audit report may be made or given by an audit firm, so long as it is signed by a member of the firm who is a registered company auditor both in the firm's name and in his or her own name. 42 In any event, even if it could be said that the relevant audit and investigating accountant's reports in this matter were made or given by Deloitte, because they were signed by Mr Saayman, or some other involved partner, both in the firm's name and that partner's own name, it would not necessarily follow that every partner of Deloitte, including the uninvolved partners, could be taken to have made the relevant representations in those reports for the purposes of s 151 of the Consumer Law. That is because, as Gross LJ (with whom Andrews J agreed) noted in Riley and others v Director of Public Prosecutions [2016] EWHC 2531; [2017] 1 WLR 505 at [29], "in the sphere of partnership as elsewhere, criminal liability is ordinarily personal to the individual offender". Gross LJ also referred in that context to the observation made by Lord Widgery CJ in Parsons v Barnes [1973] Crim LR 537 at 538 that "[n]o general proposition could be laid down that one partner was necessarily responsible for the acts of his co-partner". 43 In all the circumstances, there is no sound basis to conclude that every partner of Deloitte could be found to have made the alleged false or misleading representations in the audit and investigating accountant's reports for the purposes of s 151. The better view is that only the lead auditor, or the partners who were directly responsible for the Hastie engagements, could be said to have made those statements, though it could perhaps be argued other partners who were registered company auditors at the time of Deloitte's appointment as auditor might also be regarded to have made them. There is, however, no basis for finding that a partner who had no involvement in the provision of Deloitte's audit or accounting services and no involvement in the Hastie engagements could be criminally liable under s 151 for the making of the allegedly false or misleading representations. 44 Since the uninvolved partners, or at least those who were not registered company auditors at the time of Deloitte's engagement by Hastie, could not be said to be criminally liable under s 151 for the alleged false or misleading representations, the uninvolved partners' claim of privilege against self-incrimination based on the risk of prosecution for an offence against s 151 of the Consumer Law must again hinge on the proposition that they might somehow be vicariously or jointly liable, either by reason of the Partnership Act or otherwise, for an offence committed against s 151 by a partner who was responsible for making the relevant representations.

FORM OF THE PRODUCTION ORDER 86 Ground 4 of the notice of appeal in VID 1063 of 2018 may be dealt with shortly. It relates to the form of the production order. The complaint is that the production order is not directed to individual partners, but to the "first respondent, other than Mr Saayman and any other partner directly involved in the relevant engagements". The circumstances in which the order came to be framed in those terms is explained in Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 4) [2018] FCA 1218 (Sadie Ville v DTT (No. 4). 87 The form that the production order took was largely a product of both the fact that Sadie Ville had taken advantage of the procedural rule permitting it to bring the proceedings in the partnership's name and the way that the privilege issue had been argued by the parties. The primary judge found that the order in those terms was sufficiently clear and less cumbersome than naming all the individual partners: Sadie Ville v DTT (No. 4) at [4]. Importantly, the primary judge had also directed the parties to provide draft orders to give effect to the reasons in Sadie Ville v DTT (No. 3). Somewhat unhelpfully, Deloitte did not provide a form of order which named all the uninvolved partners to whom the production order should be directed: Sadie Ville v DTT (No. 4) at [4]. It simply raised objections concerning the form of the order proposed by Sadie Ville. Had it pursued a more helpful and constructive approach, the issue may have been dealt with differently. 88 In any event, Deloitte has not demonstrated how the form of the order, at this stage of the proceeding, gives rise to any practical or substantive uncertainty or unfairness. It may be that this issue will need to be revisited if the uninvolved partners continue to resist production in answer to the production order. There may, for example, be issues in relation to the enforcement of the order in its current form if the uninvolved partners fail to comply with it. These are matters that can and should be raised with the primary judge at an appropriate time. If the complaint is persisted with, it could readily be remedied by the primary judge requiring Deloitte to provide a list of the relevant uninvolved partners so that an order can be made in those terms. In the context of this application, however, it suffices to say that the form of the production order provides no basis to allow the appeal. Even if it did, the appropriate order would be to simply remit the matter to the primary judge to vacate the existing order and make an order naming each of the relevant uninvolved partners.

Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd

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Judgment (37 paragraphs)

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Legislation Cited (17)

Cases Cited (24)

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