Diawara v National Australia Bank Limited

Federal Court of Australia|2023-09-08|Before: Abraham J

157 ACSR 438 Roberts-Smith v Fairfax Media Publications Pty Limited (No 25) [2021] FCA 1558 TerraCom v ASIC [2022] FCA 208; (2022) 401 ALR 143 The Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610 Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] 1 KB 134 Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529

National Practice Area: Administrative and Constitutional Law and Human Rights

Solicitor for the Applicant: Petrine Costigan Lawyers

Counsel for the Respondent: Ms R Sweet KC and Ms C Pase

Solicitor for the Respondent: Herbert Smith Freehills

AND: NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 Respondent

order made by: ABRAHAM J DATE OF ORDER: 8 September 2023

The respondent be excused from complying with category 1 of the notice to produce dated 12 April 2023 issued by the applicant to the respondent pursuant to rule 30.28(1) of the Federal Court Rules 2011 (Cth).
The applicant pay the respondent's costs of this application, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 These proceedings concern a claim for legal professional privilege in respect of a document sought by a notice to produce dated 12 April 2023 issued by the applicant to the respondent in relation to substantive proceedings in this Court. Those proceedings involve allegations of sex and race discrimination by a current employee of the respondent in the course of her employment. 2 There appears to be no dispute that the document sought is a copy of an investigation report created by Wise Workplace Solutions (WWS) dated 22 August 2022 and titled "National Australia Bank Limited Corporate and Institutional Banking Markets Team External Review Report" (Cultural Review Report). 3 On 19 April 2023, the respondent provided the Cultural Review Report to the Court in response to the notice to produce in a sealed envelope marked confidential and privileged and under cover of correspondence requesting that access to the Cultural Review Report not be granted until such time as the respondent's claim for privilege was determined. 4 The respondent seeks that the notice to produce be set aside in relation to the request pertaining to the Cultural Review Report on the ground that the Cultural Review Report is the subject of legal professional privilege. 5 The applicant challenges the claim for legal professional privilege, but argues if it is established, the privilege has been impliedly waived. 6 For the reasons below, I am satisfied that the Cultural Review Report is the subject of legal professional privilege. I am not persuaded that there has been a waiver of privilege.

Legal principles 7 I summarised the principles relevant to a claim for legal professional privilege in Roberts-Smith v Fairfax Media Publications Pty Limited (No 23) [2021] FCA 1460; (2021) 157 ACSR 438 (Roberts-Smith (No 23)) at [37]-[46], expanded upon in respect of waiver of privilege in Roberts-Smith v Fairfax Media Publications Pty Limited (No 25) [2021] FCA 1558 at [18]-[26]. The following summary is taken in large part from those judgments. 8 As the respondent's claim for privilege is made in respect of the inspection of documents sought by a notice to produce, it is governed by the common law and not the Evidence Act 1995 (Cth): Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 (Esso) at [16]-[17]; Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057; (2011) 283 ALR 299 at [6]-[9]; DBCT Management Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd Joint Venture [2021] FCA 512 (DBCT) at [74]. 9 Legal professional privilege protects a person from being compelled to produce documents or give information which would reveal communications between a client and his or her lawyer, made for the dominant purpose of obtaining or providing legal advice, or the provision of legal services, including representation in pending or anticipated legal proceedings: Esso at [35], [61]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9]. The relevant time at which a claim for privilege is determined is the time it came into existence: Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 242 ALR 601 at [5]. 10 The dominant purpose is the "ruling, prevailing or most influential purpose": Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at 416. It is a purpose that predominates over other purposes; the prevailing or paramount purpose: AWB Limited v Cole [2006] FCA 571; (2006) 152 FCR 382 (AWB) at [105]-[106]. The "dominant purpose" brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time: Esso at [58]. The purpose for which a document is brought into existence is a question of fact that must be determined objectively, having regard to the evidence, the nature of the document and the parties' submissions: AWB at [110]. 11 An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (Pratt 2004) at [35]. Attention is focused on the purpose (or purposes) of the person who created the document, or who, if not its author, had the authority to, and did, procure its creation: Pratt 2004 at [35]. Where the person who procured the creation of the document is not its author (such as a solicitor commissioning a report), the intention of that person, not the author, is relevant: Hartogen Energy Limited (in liq) v The Australian Gas Light Company [1992] FCA 484; (1992) 36 FCR 557 (Hartogen Energy) at 568-9. Although, as noted above, the existence of an ancillary purpose is not fatal to a privilege claim, if there are two purposes of equal weight, neither is dominant: The Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266 at [30(8)]; Re Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) [2006] NSWSC 899; (2006) 203 FLR 1 at [14(h)]. 12 The party claiming privilege bears the onus of proving the facts necessary to establish the relevant privilege, including that the communications or documents in question were made or created for the required dominant purpose: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 (Grant v Downs) at 689. The existence of privilege will not "necessarily or conclusively [be] established by resort to any verbal formula or ritual": Grant v Downs at 689. Nor will it necessarily be sufficient for a party merely to assert a claim for privilege or rely on an affidavit which asserts the purpose for which a document was brought into existence followed by a statement of the category of legal professional privilege to which the document is said to belong: National Crime Authority v S [1991] FCA 234; (1991) 29 FCR 203 at 211 (NCA v S); Kennedy v Wallace [2004] FCAFC 337; (2004) 142 FCR 185 at [13]. 13 The concept of legal advice in the context of advice privilege is fairly broad. It goes beyond formal advice as to the law, and extends to professional advice as to what a party should prudently or sensibly do in a relevant legal context, but does not extend to advice that is purely factual or commercial: Balabel v Air India [1988] Ch 317 at 330; DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151 at [45]; AWB at [100]; BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181; (2020) 283 FCR 299 at [62]. Legal advice includes professional advice given by lawyers to a client as to what evidence and submissions should be placed before a commission of inquiry: AWB at [100]; Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610 at [37]-[43], [113]-[120]. 14 Litigation privilege attaches to confidential communications passing between a client and the client's lawyer or a third party, or the client's lawyer and a third party, where the communication was made for the dominant purpose of use in, or in relation to, existing or reasonably anticipated litigation: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332 at [8]; Commissioner of Taxation v Pratt Holdings Pty Ltd [2003] FCA 6; (2003) 195 ALR 717 at [39]; AWB at [144]. The key difference between advice privilege and litigation privilege is that litigation privilege is not limited to communications whose dominant purpose is the giving or obtaining of legal advice: AWB at [145]. 15 Given the focus of this application it is also necessary to refer to the principles relevant to waiver of privilege. 16 In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (Mann), the plurality explained the rationale and approach at [28]-[29] as follows (citations omitted): [28] At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege… [29] Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege… What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. 17 When considering whether a waiver of privilege has occurred, each case must be assessed on its own facts: Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86; (2006) 151 FCR 341 (Rio Tinto) at [45], [61]. As explained at [45]: Where, as here, one party alleges that another has impliedly waived legal professional privilege, a court is bound to analyse the acts or omissions of the privilege holder that are said to be inconsistent with the maintenance of the privilege. In concluding that the Commissioner had waived the privilege in the eight contested documents, the docket judge in fact applied the "inconsistency" principle of Mann, as he was obliged to do: see Rio Tinto (2) at [20]. Plainly enough, the inquiry that it mandates focuses on the facts of the particular case. It follows that other cases in which implied waiver has been considered provide limited guidance unless they arise out of similar facts. 18 In DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499, Allsop J (as his Honour then was) observed at [58] (emphasis in the original): …the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication… 19 At [61] of Rio Tinto, the Full Court of the Federal Court observed: Both before and after Mann, the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence… 20 Inconsistency may arise if the privilege holder makes assertions about its state of mind and there are likely to have been confidential communications which affected that state of mind: Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 at [48]. The question, however, is not whether a party has put their state of mind in issue but whether or not the privilege holder made an assertion as part of their case that lays open the privileged documents to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of privilege: Rio Tinto at [65]. 21 The Court has the power to examine documents in respect of which a privilege claim is made: Grant v Downs at 689. The essential purpose of inspecting the documents is "to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege": AWB Limited v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [44(12)]. "[I]n many instances the character of documents the subject of the claim will illuminate the purpose for which they were brought into existence": Grant v Downs at 689. A party is not entitled to insist on the court inspecting the documents, it being a matter for the discretion of the judge, who will only do so if there is good reason: Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [31], citing Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] 1 KB 134 at 146; District Council of Mallala v Livestock Markets Ltd [2006] SASC 80; (2006) 94 SASR 258 at [30]; Woollahra Municipal Council v Westpac Banking Corporation (1994) 33 NSWLR 529 at 542.

Evidence 22 The respondent read the affidavit of Michael Jon Gonski affirmed 28 April 2023, with annexures in support of its claim. In addition, the respondent tendered an unredacted copy of the letter of engagement from Herbert Smith Freehills (HSF) to WWS dated 31 May 2022, a redacted version being attached to the affidavit (letter of engagement). 23 The applicant tendered two annexures to the affidavit of Petrine Costigan affirmed 14 April 2023. Those annexures were a copy of an article published in The Australian on 27 September 2022, and a copy of an article published in Mortgage Professional Australia on 28 September 2022. The applicant also tendered an email chain between the respondent and The Australian dated 27 September 2022. The email chain included an email from the respondent providing The Australian with an email sent by David Gall (Group Executive, Corporate and Institutional Banking, NAB) to the Corporate and Institutional Banking Markets Team (Markets Team) on 25 August 2022 (the Gall Email).

Submissions 24 The respondent submitted that the evidence established that following the filing of the substantive proceedings on 22 April 2022, the respondent instructed HSF to provide it with legal advice related to the respondent's risk profile from a work health and safety and employment law perspective, as well as the respondent's more general legal obligations in respect of the proceedings (amongst other things) (the Advice). The Cultural Review Report was commissioned from WWS by HSF (by one of its partners, Mr Michael Gonski), on instructions from the respondent, to be utilised by HSF in providing the Advice to the respondent in respect of the substantive proceedings. The respondent submitted that this is confirmed by HSF in its letter of engagement to WWS. Consistent with this purpose, to assist WWS, HSF provided WWS with court documents filed in the substantive proceedings. The respondent pointed to aspects of the letter of engagement in support of their submission (considered below). The respondent also invited the Court to examine the Cultural Review Report for the purpose of determining whether, on its face, the nature and content of the document supports the claim for legal professional privilege. 25 The applicant opposed the conclusion that the Cultural Review Report was the subject of legal professional privilege on a number of bases. First, it was contended that Mr Gonski is not the person whose purpose is to be examined, as he was a "mere conduit" through whom the outcome desired by the client was achieved. On the applicant's submission, the relevant purpose to be examined is the respondent's, and there is no direct admissible evidence of that purpose. It was also noted that there is nothing in the evidence that even discloses the identity of the person(s) who gave the instructions to procure the Cultural Review Report (whose mind can be taken to be the controlling mind of the corporation for the purposes of this particular transaction). Second, the applicant considered that the asserted dominant purpose of the Cultural Review Report was called into question by the fact that WWS was undertaking a factual investigation into two further matters (ascertained from the letter of engagement). Third, the applicant contended that the Court has not received any detailed evidence of the sequence of events that led to the procuring of the Cultural Review Report from which safe inferences about the dominant purpose of the Cultural Review Report could be drawn (comparing DBCT). Fourth, the applicant submitted that Mr Gonski's bald assertion that the Cultural Review Report was procured for the "sole" purpose of HSF providing the Advice to the respondent is unsupported by evidence of the way in which the instructions to engage WWS came about. As a statement of Mr Gonski's/HSF's purpose, it is little more than a "verbal formula": cf Grant v Downs at 689. It was also submitted that the invitation to view the Cultural Review Report should be rejected. This submission was made on the bases that no "good reason" had been identified to do so; and that doing so may operate an unfairness on the applicant by virtue of the fact that the evidence in support of the privilege claim, on which the applicant could make submissions, was slight: TerraCom v ASIC [2022] FCA 208; (2022) 401 ALR 143 at [74] (TerraCom).

Consideration 26 I am satisfied that on the evidence, properly read, the respondent has established that the dominant purpose for the creation of the Cultural Review Report was for it to be utilised by HSF in providing the Advice to the respondent in respect of the substantive proceedings. 27 Contrary to the applicant's submission, the respondent is not relying on a mere verbal formula. Rather, Mr Gonski's assertion as to the "sole" purpose for which the Cultural Review Report was created must be considered with the other evidence, which includes the letter of engagement. The claim by Mr Gonski is not unsupported by evidence sufficient to enable the Court to consider and make an informed decision: cf NCA v S at 212. 28 The letter of engagement clearly sets out the basis upon which the Cultural Review Report was sought, which includes, inter alia, its use in providing the Advice sought by the respondent. WWS was provided, inter alia, with the documents filed in the proceedings and Ms Diawara's Australian Human Rights Commission complaint to assist in conducting the review. Protocols were set out for conducting interviews and contacting interviewees, and the respondent's staff. The letter of engagement provided that any communications with others in the course of the investigation must include in the heading the words "Privileged and Confidential". Protocols and conditions for the handling of the material used to compile the Cultural Review Report were detailed. The Cultural Review Report and anything associated with its preparation are repeatedly referred to in the letter of engagement as confidential and privileged. The letter of engagement emphasises that "[i]t is critical that these protocols be followed to ensure that your report remains privileged and to avoid any confusion about your instructions". 29 In the letter of engagement under the heading "Nature of the report", HSF states: …Your report, and all communications related to it, are subject to legal professional privilege and must not be communicated to any other person or entity without the prior written consent of NAB, provided through Herbert Smith Freehills… 30 The letter of engagement specifies that access to the communications, or copies thereof, from HSF and or the respondent to any other person is not to be provided without the prior written consent of HSF. The letter of engagement specifies that the Cultural Review Report, and any draft thereof be expressly headed: Privileged and Confidential This communication has been brought into existence at the request of Herbert Smith Freehills (Solicitors for National Australia Bank) for the purpose of enabling Herbert Smith Freehills to provide legal advice to National Australia Bank. This communication is subject to legal professional privilege and must not be copied or otherwise distributed or transmitted to any person without the prior consent of Herbert Smith Freehills. 31 The Cultural Review Report itself is marked "STRICTLY CONFIDENTIAL AND SUBJECT TO LEGAL PRIVILEGE". As I observed at [90] of Roberts-Smith (No 23), although not conclusive, as noted above, this is typical of what might occur if the document was prepared for a privileged purpose(s). It reflected on its face that it is confidential. Therefore, in this case, once received, and in the hands of any person at HSF or the respondent, it was to be treated confidentially by them. There was an obligation of confidentiality. 32 I do not accept the applicant's submission that the evidence is that Mr Gonski was a "mere conduit". That Mr Gonski was acting on instructions does not, as contended by the applicant, reduce him to that status. Mr Gonski was tasked by the respondent with providing the Advice. The Cultural Review Report was brought into existence by Mr Gonski for the purposes of providing that Advice. The letter of engagement was signed by Mr Gonski. It demonstrates that there was a necessary and substantial role for HSF to play in the Cultural Review Report's creation. For example, the letter of engagement indicates that WWS was not to contact or provide any documents to interviewees or other employees of the respondent without HSF's prior approval. It also makes clear that WWS was required to direct all communications to the respondent's staff through HSF; that WWS had been engaged to prepare the Cultural Review Report for HSF (not the respondent); and that the completed Cultural Review Report was to be provided to HSF (not the respondent). I agree with the respondent's submission that these factors illustrate that HSF (through Mr Gonski) played a central role in bringing the Cultural Review Report into existence. 33 As explained above at [11], where the person who procured the creation of the document is not its author, such as a solicitor commissioning a report, the intention of that person, not the author, is relevant: Roberts-Smith (No 23) at [40], citing Hartogen Energy at 568-9. HSF, by one of its partners (Mr Gonski) commissioned WWS to conduct a factual investigation and prepare a report of that investigation to inform the Advice. As the respondent submitted, and as referred to above, Mr Gonski gave evidence of the relevant purpose. 34 The applicant accepted that a purpose of commissioning the Cultural Review Report was to obtain legal advice. In so far as the applicant submitted orally that the Gall Email (extracted below at [39]), and the email chain between the respondent and The Australian (including the email which provided the Gall Email to The Australian), reflects there was another purpose for obtaining the Cultural Review Report, it, even if correct, does not detract from the evidence that the dominant purpose for the commissioning of the Cultural Review Report was to obtain legal advice. 35 As referred to above, the purpose for which a document is brought into existence is a question of fact that must be determined objectively, having regard to the evidence, the nature of the document and the parties' submissions: AWB at [110]. I am satisfied that the dominant purpose was for the purpose of obtaining legal advice. 36 Accordingly, I am satisfied that the Cultural Review Report is the subject of legal professional privilege.

Submissions 37 The applicant submitted that the respondent has disclosed the outcome of the Cultural Review Report findings in the Gall Email, which was then provided to The Australian and referred to in articles published in both The Australian and Mortgage Professional Australia. The applicant contends that the reference to the outcome of the Cultural Review Report in that manner is inconsistent with the maintenance of privilege in much the same way that it was in relevantly analogous circumstances in TerraCom. 38 The respondent submitted that there had been no waiver. Rather, it was contended that the Gall Email provided general commentary about the culture of the Markets Team as it did not expressly identify the Cultural Review Report or any related legal advice. The respondent submitted that the extract of the Gall Email does not rise above a statement of an assertion or opinion by the respondent about the state of the culture of the Markets Team, taking into account the identified sources of his information, one of which the respondent accepts was the Cultural Review Report. The respondent also submitted that the act of providing The Australian with the Gall Email does not amount to a waiver of privilege, as the Gall Email itself does not waive privilege.

Consideration 39 It is appropriate to consider the aspect of the Gall Email relied upon by the applicant in its context (emphasis added): Team, I wanted to take the opportunity to provide an update regarding the court proceeding on allegations of discrimination made by a former member of the Markets team, and the steps we have taken to fully understand the culture of the team. As you know we have been spending time with the Markets team, and invited them to confidentially share any concerns they may have about discrimination in the workplace and I wanted to provide you with an update on the actions we are taking. Having considered previous Heartbeat results, insights from the Whistleblower program and these conversations with the Markets team, it showed the culture in the Markets team is friendly, inclusive, fair, caring, and supportive, where people of different genders and background are respected. Like any team, there are also some areas where we must continue to raise the bar. These include focusing on making sure everyone feels equal across all levels of the Markets team, recognising and supporting our differences and ensuring all colleagues continue to feel supported at all times. We also identified the opportunity Trading, Sales and Compliance teams have to work more effectively together, and we'll continue to focus on recruiting diverse skill sets and backgrounds when we replace roles. As a team, we will work on these opportunities, and I have asked for regular tracking and reporting to ensure we're making progress. We lodged our defence in the Court in July and denied all of allegations made against NAB and our colleagues. As the matter remains before the court, it is not appropriate that we respond to all media questions, but please be assured we are defending all the allegations which have been made against us. We take these matters extremely seriously. I reiterate that NAB takes a zero-tolerance approach to all forms of discrimination and we are deeply committed to supporting equality and diversity in the workplace. Any discrimination is not tolerated. Again if anyone has concerns, please raise it using any of the channels below, or my door is always open. • contacting Employee Relations (via Colleague Connect); • speaking to your NAB People Leader; • making a disclosure under the NAB Whistleblower Program: or • contacting any member of the ELT. Kind regards, David Gall 40 It is the emphasised part which forms the basis of the applicant's contention that waiver of privilege has occurred. 41 On 27 September 2022, The Australian reported: But a team of external investigators brought in by the bank has cleared NAB's markets team in a report which has been circulated to management. … NAB declined to release the report or a summary of its findings and did not reveal if group chief executive Ross McEwan was privy to its findings. NAB directed The Australian to an email circulated by NAB group executive corporate and institutional banking David Gall on August 25, in which he welcomed the findings of the review. This came after Mr Gall addressed all staff during a "town hall" meeting. 42 Similar comments were made in the article published in Mortgage Professional Australia on 28 September 2022, which largely repeats the content of The Australian article. The article in Mortgage Professional Australia also contains excerpts of the Gall Email itself (including the part emphasised above). 43 Questions of waiver are matters of fact and degree: Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 at [49]. 44 The purpose of the conduct said to amount to the waiver is plainly relevant to the assessment of whether that conduct is inconsistent with the maintenance of confidentiality said to have been waived: Mann at [14]. 45 I accept the respondent's submission that the clear and stated purpose of the Gall Email appears to be to provide a group of the respondent's staff with an update on the steps taken "to fully understand the culture of the team" as well as an update on the progress of the substantive proceedings (which is, or at least had been, the subject of media attention). Furthermore, there is no express reference to the Cultural Review Report. The terms of the Gall Email considered as a whole emphasise the limited nature of information that can be provided given the need for confidentiality. 46 On its face, the statement relied on by the applicant in respect to waiver appears to be an expression of opinion by Mr Gall. That legal advice may be seen to be relevant to that opinion is not inconsistent with the maintenance of privilege over the Cultural Review Report: see for example, Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited (No 2) [2020] FCA 1013 at [31]. 47 I am not persuaded that the limited statement in the Gall Email is inconsistent with the maintenance of confidentiality, such as to amount to waiver of privilege. The provision of the Gall Email to The Australian does not alter that conclusion. It was provided to The Australian in respect to specific questions. It purported to address those questions. 48 Moreover, the articles in The Australian and Mortgage Professional Australia do no more than quote the Gall Email. They also expressly confirm that the respondent declined to release a copy of the Cultural Review Report or a summary of its findings.

Conclusion 49 Having reached the conclusions above, I also considered the Cultural Review Report itself. This merely confirmed the view I had already reached that the Cultural Review Report is the subject of legal professional privilege. The respondent is excused from complying with the part of the notice to produce seeking production of this document. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.

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