ASIC's knowledge of the Four Corners investigation and broadcast
98 As I have observed earlier, it was not until 30 March 2009 that I was informed by ASIC through its counsel, or became aware, of the reason why ASIC could not state, or was not prepared to state, either in open court or in the ex parte hearing in camera why it could not identify the reason why it was not prepared to state publicly or openly the basis for its claim for PII which was informer or whistleblower privilege.
99 In the course of the hearing on 30 March 2009, it became apparent that ASIC had become aware of an investigation by the Four Corners program into Multiplex's Wembley Stadium project prior to the broadcast of the 'Road to Wembley' program on 5 September 2005. It also appeared that ASIC was aware of that broadcast and the contents of it referred to in par [52] above.
100 These revelations occurred in the course of Senior Counsel for ASIC's closing submissions in which he analysed various passages in Mr Watson's evidence‑in‑chief and cross‑examination:
"MR PEARCE: The first is that a reasonable person in Mr Watson's position would, by the time of the Full Court hearing, have deduced that ASIC was relying, at least in part, on informer immunity. Secondly, and assuming that Mr Watson is being truthful - assuming that what he said was truthful, then his failure to reach that conclusion by the time of the Full Court hearing, was a failure of his own making. In particular, his misunderstanding of what Ms Hogan‑Doran said on 7 August, his failure to undertake any research into public interest immunity, including on Smith's case, his failure to take account of what Dr Bell said on 7 August, and especially of what Dr Flick said on 11 September - - -
HIS HONOUR: So, failure to take account of what Dr Bell said on - - -
MR PEARCE: What Dr Bell said on 7 August, but more importantly, what Dr Flick said on 11 September. His failure to appreciate why it was that ASIC was not disclosing the basis of its claim for immunity, and it seems as if I need to spell it out, but your Honour, it's quite plain that if ASIC had disclosed that it was relying on informer immunity, it would have pointed the finger strait at Mr Cummins.
HIS HONOUR: Why?
MR PEARCE: Because there had been speculation in the press that Mr Cummins was the whistleblower, and whether ASIC knew that - whether ASIC was aware of the Four Corners program and the press speculation is not known, but a person - a reasonable person in ASICs position, would have assumed a likelihood, or at least the possibility, that Maurice Blackburn was aware of that. Their concern, your Honour - ASICs concern was to protect the identity of the whistleblower, or whistleblowers. That's what all their conduct was directed at. It was reasonable for ASIC to have assumed, had they stated explicitly their claim was for informer immunity, that would have pointed the finger straight at Mr Cummins.
HIS HONOUR: That's because ASIC knew, on 11 September, about the Four Corners program.
MR PEARCE: I'm not conceding that, your Honour, and I don't know the answer to that.
HIS HONOUR: But that must follow.
MR PEARCE: Well, no, your Honour. What can fairly be inferred - - -
HIS HONOUR: Because Dr Flick was being Delphic. Why was he being Delphic?
MR PEARCE: Well, it's a reasonable inference, your Honour. It's a reasonable inference, but it's not the - - -
HIS HONOUR: In that case, that needs to be a matter of evidence, doesn't it?
MR PEARCE: Well, no, your Honour, what can fairly be inferred about ASICs conduct, is that they apprehended that by disclosing their claim for immunity as one of informer privilege, that that would have alerted Maurice Blackburn to the source of their information being Mr Cummins. Now, that is a fair inference from the material, and that being so, they were right not to disclose the basis of their claim for immunity."
101 ASIC submitted that the material relating to the broadcast of the Four Corners program on 5 September 2005 was reasonably available to the applicants at the time of the hearing before me on 11 September 2007 and was also reasonably available to the applicants together with the details of the conversations Mr Watson had with the private investigator and Mr Cummins in late April/early May 2008 before the hearing before the Full Court. When I asked Senior Counsel for ASIC why would the solicitor fail to put that material before the Court, the response was that he had made "a number of mistakes".
102 Senior Counsel for ASIC said that Senior Counsel for ASIC's references before me on 11 September 2007 to "the means and source" could only sensibly have been to informer immunity. (I reject that submission having regard to all the statements made by ASIC's counsel on 7 August 2007 and 11 September 2007). I put to counsel for ASIC that "Dr Flick was being Delphic" and his response was that "a reasonable person would have understood why Dr Flick was being Delphic".
103 Counsel for ASIC said that there was a series of compounding mistakes made by Mr Watson, the first being his misunderstanding of what Ms Hogan‑Doran said (on 7 August 2007) and then his failure to take account of what Dr Flick said, his failure to appreciate why it was that ASIC was being delphic.
104 ASIC's reliance on Mr Watson's failure to appreciate why it was that ASIC was being delphic presupposes that Mr Watson was able to determine why ASIC was being delphic. However, neither ASIC nor Dr Flick ever explained why ASIC was being delphic. So far as I am concerned, I was never told by ASIC or by its counsel in the open or ex parte hearings in camera on 11 or 17 September 2007 why it could not say in open court that the basis of its claim for PII was informer privilege or whistleblower privilege.
105 The following discussion then ensued:
"HIS HONOUR: But there's - I understand the submission, and I'll - I have to consider it, but the reason why ASIC couldn't say whistleblower immunity was because you say ‑ ‑ ‑
MR PEARCE: It just would have pointed the finger straight at Mr Cummins.
HIS HONOUR: ‑ ‑ ‑ that would have pointed to Mr Cummins.
MR PEARCE: Yes.
HIS HONOUR: Because what was in the public domain.
MR PEARCE: Well, but ASIC were entitled to apprehend the risk that that would happen.
HIS HONOUR: But it was in the public domain, anyway.
MR PEARCE: Well, no, it wasn't, your Honour. I'll come to that in a moment. It wasn't. The Four Corners show did not name Mr Cummins. The Four Corners show referred to a whistleblower, and referred to a person occupying the position that Mr Cummins ‑ ‑ ‑
HIS HONOUR: Well, group general manager.
MR PEARCE: Correct. Now, those in the know would have worked out who it was referring to, and the curious could have made their inquiries. But the great bulk of the viewers, and we don't know how many viewers, of course, there were for Four Corners on that night, but the great bulk - the great bulk would not have been told. Only those in the know would have had confirmed what they either already knew or suspected. The curious could have made their inquiries and worked it out, but there's no evidence - there's no evidence that the Four Corners show led to widespread disclosure that Mr Cummins was the whistleblower. There's no evidence at all of that, your Honour. The same applies for the press reports. They didn't name Mr Cummins
HIS HONOUR: I understand that, but you say if Dr Flick had said whistleblower immunity, that would have pointed - that would have exposed ‑ ‑ ‑
MR PEARCE: I say ‑ ‑ ‑
HIS HONOUR: That would have pointed to Mr Cummins.
MR PEARCE: I say there was a sufficiently serious risk of that to make it incumbent on ASIC to adopt this Delphic position.
HIS HONOUR: But it wouldn't have pointed to Mr Cummins on what you have just told me, it would have pointed to someone occupying a position of group general manager.
MR PEARCE: Yes, and ‑ ‑ ‑
HIS HONOUR: But that was in the public domain.
MR PEARCE: That was, your Honour, yes.
HIS HONOUR: Yes, I follow that.
MR PEARCE: Right. Now, your Honour ‑ ‑ ‑
HIS HONOUR: Well, I understand how you put the submission.
106 It seemed to me at the time that this dialogue occurred and it also seems to me now, that at the time of the hearing before me on 11 September 2007 and at the time of the hearing before the Full Court on 8 May 2008, ASIC was aware of the Four Corners program which had been broadcast on 5 September 2005. I raised this matter with counsel for ASIC and the following dialogue occurred:
"HIS HONOUR: Can I just - there's something troubling me about this submission. It must be implicit in that submission that ASIC was aware of the Four Corners program.
MR PEARCE: It's not, your Honour, with respect. It's ‑ ‑ ‑
HIS HONOUR: But assuming ASIC wasn't aware of the Four Corners program, does your submission still stand up?
MR PEARCE: It does, your Honour, for this reason that I tried to explain a moment ago. That the position from ASICs point of view is, would disclosure of the nature of the claim have incurred a risk of identifying Mr Cummins as the whistleblower.
HIS HONOUR: And the answer, in the absence of Four Corners program, is no.
MR PEARCE: Well, not necessarily, your Honour. We didn't ‑ ‑ ‑
HIS HONOUR: Why?
MR PEARCE: Because we didn't know what sources Maurice Blackburn may have had. We didn't know that they'd launched this proceeding.
HIS HONOUR: But if you didn't know of any sources of information that Maurice Blackburn had, and you weren't aware of the Four Corners program, on the material before ASIC there's no risk, surely.
MR PEARCE: Well, your Honour, it's reasonable for a regulator in ASICs position to think that somebody bringing a claim in the manner and nature that Maurice Blackburn was would have had their own sources of information. It was reasonable for ASIC even not knowing about the Four Corners show.
HIS HONOUR: Why?
MR PEARCE: Why, because they have got - they must have sources of information too.
HIS HONOUR: I'm sure Maurice Blackburn Cashman ‑ ‑ ‑
MR PEARCE: And it's turned out that they had a private investigator. Now, we didn't know that at the time, but ‑ ‑ ‑
HIS HONOUR: Well, you didn't know that at the time either.
MR PEARCE: No, we didn't know that at the time, but ‑ ‑ ‑
HIS HONOUR: But why should ‑ ‑ ‑
MR PEARCE: ‑ ‑ ‑ if we had assumed, your Honour, that they had sources of information we would have been right to assume that. Now, that's all I'm saying, your Honour.
HIS HONOUR: So you're saying ASIC was entitled to assume that Maurice Blackburn had knowledge of ‑ ‑ ‑
MR PEARCE: Sufficient facts that would have pointed them straight at Mr Cummins had we disclosed the basis of this claim."
107 In my view, the conclusion to be drawn from these observations of counsel for ASIC is that ASIC knew on 11 September 2007 of the fact of the Four Corners program 'Road to Wembley' broadcast on 5 September 2005 and was not prepared to disclose the existence of that broadcast, or the fact that it knew about the broadcast, because otherwise as soon as it said that the basis of the claim for PII was informer or whistleblower privilege, the applicants would immediately respond to it by saying, words to the effect - "oh, we know that the identity of the informer was disclosed on the ABC Four Corners program on 5 September 2005 and that the informer was Mr Cummins".
108 I am satisfied that ASIC achieved what it sought to achieve at the hearings on 7 August 2007 and 11 September 2007, that is to say, to ensure that the applicants and their legal advisers did not form the view, or believe, that the basis, or one of the bases, for ASIC's claim for PII was informer privilege.
109 In the course of submissions I asked counsel for ASIC whether the fact of the Four Corners program was in evidence before me or the Full Court. Counsel said "there is material that suggests that it was". I expressed surprise at that statement and counsel for ASIC said that he was instructed that the position was that it was not directly raised by counsel in submissions but that there was material which was put before me and before the Full Court. He said that my attention was not drawn to this material.
110 Mr Hutley S. C. followed with his closing submissions. The following dialogue is instructive:
"… I'm going to come what must now be inferred about Ms Hogan‑Doran's approach to this application before Finkelstein J and that depends upon what now seems to be the case as to what ASICs position was before your Honour. And this is, and I say it is, in my respectful submission, extraordinary. It appears to be this, that at all time, ASICs sole case was that it was informer privilege.
HIS HONOUR: I think you can make that assumption.
MR HUTLEY: Yes. It appears that there seems to be a fear that if that was said, Mr Cummins would have been identified by us, in court, as the informer, on the basis, no doubt, of the publicly available information that he was the informer as Dr Bell freely conceded. The distinction between having him identified as the general manager - - -
HIS HONOUR: Group general manager.
MR HUTLEY: Group general manager and giving his name to a publicly listed company such as Multiplex is meaningless and Dr Bell's concession in that is clearly correct. So there appears to have been a fear that if your Honour was told - we were told, in open court, the fact of what their application was, we would have, as we say we would have, have brought forward the evidence of the matters we seek to agitate here and prove to the court that it was common knowledge that the informer was Mr Cummins. So the aim was to avoid that. And it now appears for the first time, unbeknown to your Honour, we might say, or it appears to the Full Court, that somewhere buried in the confidential information which we haven't seen is some reference to that Four Corners program. We may but speculate as to the elliptical character of that. We do not know.
HIS HONOUR: Mr Pearce doesn't say that either my attention or the Full Court's attention was drawn to the Four Corners program.
MR HUTLEY: I accept that but, your Honour, what does now become perfectly clear is the reason for the elliptical, Delphic, however one wants to describe it, language before your Honour in open court was for the purpose of diverting us from raising the very matter we seek to agitate. It's the only possible construction. Since ASIC was clearly was aware of it, because they now admit that somewhere buried in the materials ‑ ‑ ‑
HIS HONOUR: ASIC was clearly aware of what?
MR HUTLEY: Of the Four Corners program ‑ ‑ ‑
HIS HONOUR: I have no evidence of that.
MR HUTLEY: No, Mr Cummins has, after the adjournment, said to your Honour reference to that fact. Mr Pearce said reference to that fact will be found in the confidential material which was before your Honour on the application, at first instance.
HIS HONOUR: Does that mean that someone might want to re-open the evidence in this application before me?
MR HUTLEY: Well, your Honour, I take that as - I can't get access to that confidential information. I would call for that material but, your Honour, there's a concession by ASIC. And I don't wish to go back to the position of ASIC as being the Commonwealth but we conduct litigation on the basis that the Commonwealth conducts itself on the basis of a model litigant. Now the true seems to be that your Honour - somewhere buried in the material which was before your Honour, on the first application, was material in fact established that ASIC at all times knew that Mr Cummins had effectively been identified in 2005 in the ‑ ‑ ‑
HIS HONOUR: Four Corners program.
MR HUTLEY: Four Corners. And the object of what they were doing, that is, what Dr Flick was doing, was to divert our attention for the possibility of agitating that. That's the only possible construction of what was occurring, because, as your Honour observed, Mr Pearce says our object was to avoid Mr Cummins being identified. Why, one asks, would reference to informer privilege identify Mr Cummins? Why wouldn't equally identify ever other possible witness? Answer, as your Honour observed in debate, that must mean that ASIC was aware of the Four Corners program.
Mr Pearce, before the adjournment, says that doesn't follow. Frankly, after the adjournment, Mr Pearce comes into court and tells your Honour, amongst the material that was before you, although not drawn to your attention, was evidence that ASIC knew of that fact, that is, Mr Cummins had been identified in the Four Corners program. Now, we submit it is quite clear what was the object of the Delphic remarks, etcetera, etcetera. It was to avoid exactly what we complain. Exactly what - it's the only possible aim of ASIC. And then the temerity of ASIC is just breathtaking. They say having succeeded in that aim, we are not to be given leave to reopen because we should have caught on to the trick; we shouldn't have been deceived; it was an inept tempt to deceive us.
It is, with respect, the unique, in my respectful submission, submission your Honour will hear over the next - the rest of - probably in your Honour's judicial career and probably for the rest of it. It amounts to this: ASIC embarked upon a course seeking to prevent us from bringing to the attention of the court that Mr Cummins was known to the world as the informant, which you might think was some what relevant to what was occurring before your Honour, or even the Full Court ‑ ‑ ‑ "
111 Mr Hutley then called for the material which ASIC had relating to the Four Corners broadcast on 5 September 2005.
112 After Mr Hutley concluded his submissions, Senior Counsel for ASIC said that there were two documents placed before me and the Full Court that referred to the fact of a Four Corners investigation. These documents were on pp 228 and 231 of a Confidential Exhibit ANS‑6 to the affidavit of Anna Skreiner sworn on 6 February 2009. They remain confidential exhibits.
113 When I asked Counsel for ASIC whether these documents had been brought to my attention, or to the attention of the Full Court during the previous hearings, counsel answered that he was instructed that this was not the case.
114 Counsel for ASIC reiterated that these documents were not drawn to my attention on 11 September 2007. The following discussion then ensued:
"MR PEARCE: No. I wasn't there, of course, and I have not gone back and looked at the transcripts, but I'm instructed they weren't drawn to your Honour's attention. I'm being prompted from all sides to say the question of media was raised, both before your Honour and the Full Court - the question of media interest.
HIS HONOUR: Media interest?
MR PEARCE: Yes, in the matters, was raised before your Honour and before the Full Court, and that's evidence in the Full Court reasons.
HIS HONOUR: I'm not sure I understand why you're referring to that.
MR PEARCE: Because I'm being prompted to do that, your Honour. I don't really understand either. I'm sorry I said it now. Should have trusted my instincts.
HIS HONOUR: So - yes.
MR PEARCE: I think I'll sit down now before I give anything else away.
HIS HONOUR: So, on your instructions, there is nothing in the material that was placed before me that identifies or refers to the fact that the Four Corners program was broadcast?
MR PEARCE: That's right, your Honour. I think that's right. I will just check that - 231. Certainly that is right about 228, but I think that's - yes. I am told both those documents refer to events that predate the broadcast."
115 Mr Hutley then sought a direction that he have access to the material relating to the inquiry conducted by Four Corners in the confidential exhibit. In that context the following dialogue occurred:
"MR HUTLEY: Yes, your Honour. I should be given the - your Honour, I don't know what is in that document. Your Honour should direct that that be made available to me. I mean, your Honour, if it doesn't refer to the broadcast, if it refers to some form of investigation, it's pounds to peanuts that ASIC must have been aware, must have been aware, at the time of the application before your Honour as to what occurred during that. They had interviewed Mr Cummins. They were obviously aware.
And, your Honour, what was submitted by my learned friend before lunch as to a possible explanation is only consistent, and it is only consistent with the aim of this thing is so we wouldn't be alerted to this very fact. And I would ask that ASIC admit that they were at all times aware of the broadcast. I mean, we are dealing with the Commonwealth. It is supposed to be a litigant, it is suppose to behave ‑ ‑ ‑
HIS HONOUR: Yes, you have told me that before.
MR HUTLEY: Yes, your Honour. But it is very - I mean, this is pretty extraordinary stuff, your Honour. I would seek a direction that I have access to that material and I don't mind if it cut - anything beyond it is, of course, blanked out, but the material which goes to the inquiry conducted by the Four Corners, or the Four Corners program should be made available to me.
HIS HONOUR: Yes. Mr Pearce, what do you say as to what Mr Hutley says about ‑ ‑ ‑
MR PEARCE: It is opposed, your Honour, subject to existing confidentiality orders, and we oppose any removal of those orders."
116 I asked counsel for ASIC whether he was submitting that I did not have power to direct that these documents be disclosed to Mr Hutley, his junior and his instructing solicitor on their undertaking for the moment until further order not to disclose the contents of the documents to any person. The following dialogue then occurred:
"MR PEARCE: Your Honour, I would say the nature of these documents is such that they are, on their face, confidential materials the sort of which ought not to be disclosed in the manner that is being proposed. Your Honour can see that from reading the document at 228 to 229.
HIS HONOUR: Yes, but in the light of the way this case has been conducted and the material which has emerged and, in particular, the evidence given by Mr Watson in relation to his and the investigator's communications with Mr Cummins, do you submit that apart from the matter of principle, any significant damage will result if these documents are made available on a ‑ ‑ ‑ "
117 Counsel for ASIC said he would need to take instructions.
118 Mr Hutley then asked whether I would permit the applicants to serve a notice to produce to ASIC calling for all documents evidencing or establishing that ASIC was aware prior to the hearing on 11 September 2007 of the fact of the Four Corners broadcast and its content. Mr Hutley sought that leave as a matter of courtesy on the basis that he might not need such leave. I gave the applicants that leave and adjourned the further hearing to a date to be fixed. I asked counsel for ASIC to obtain instructions in relation to the inspection by the applicants' counsel of the two documents in the confidential exhibit and to communicate those instructions by email to my Associate, copied to the other parties. I then adjourned the further hearing of the matter to a date to be fixed.
119 On 1 April 2009 the applicants served on ASIC a Notice to Produce requiring it to produce before the Court the following documents for the purpose of evidence:
"1. One copy of all documents referring to an ABC television programme relating to Wembley Stadium and/or a "Four Corners" investigation and/or a Four Corners television programme known as the "Road to Wembley":
a. created by the Australian Securities and Investments Commission, its officers, servants or agents on or prior to 11 September 2007; and/or
b. in the possession of the Australian Securities and Investments Commission, its officers, servants or agents on or prior to 11 September 2007.
2. One copy of all documents evidencing or establishing that the Australian Securities and Investments Commission, its officers, servants or agents were aware prior to 11 September 2007 of the fact that the ABC had aired a television broadcast the subject of which related to:
a. Multiplex Group or any of its subsidiaries;
b. the construction of Wembley Stadium by Multiplex Group or any of its subsidiaries;
c. the Australian Securities and Investments Commission's investigation into Multiplex Group or any of its subsidiaries;
d. Multiplex Group's accounting group general manager; and/or
e. any whistleblower or informer to the Australian Securities and Investments Commission regarding Multiplex Group or any of its subsidiaries."
120 On 2 April 2009 the applicants served on ASIC a Notice to Produce the following documents for the purpose of evidence:
1. One copy of any document evidencing or establishing that ASIC was aware prior to 11 September 2007 that there had been broadcast by the Australian Broadcasting Corporation on television Channel 2 in the Four Corners program on 5 September 2005 a segment relating to the affairs of the second and third respondent or one or other or them, a transcript of which is exhibit "AJW-10" to the affidavit of Andrew John Watson sworn on 6 January 2009, in which it was broadcast that:
"Things had gone wrong. Someone in Multiplex had blown the whistle. In mid-February Multiplex's accounting group general manager raised concerns about the February accounts. In the week leading up to the results, he wrote to members of the board and contacted ASIC, the corporate regulator. ASIC launched an investigation".
This description of the documents was consistent with the order I made on 30 March 2009 giving the applicants leave to serve a notice to produce on ASIC.
121 The procedure to be adopted by the Court where one party to a proceeding serves a notice to produce upon another party to a proceeding is clear. Order 15 rule 13 of the Federal Court Rules provides:
"(1) The Court may, at any stage of any proceeding, order any party to produce to the Court any document in his possession, custody or power relating to any matter in question in the proceeding.
(2) Upon production of a document to the Court pursuant to an order under subrule (1), the Court may deal with the document in such manner as the Court thinks fit."
Order 15 rule 14 provides:
"Where an application is made for an order under rule 11 for the production of any document for inspection by another party or for an order under rule 13 for the production of any document to the Court and a claim is made that the document is privilege from production or an objection to production is made on any other ground, the Court may inspect the document for the purpose of deciding the validity of the claim or rejection."
122 Order 33 rule 12 of the Federal Court Rules gives a notice to produce the same effect as a subpoena for production. That is to say, compliance with the notice is required and is mandatory unless excused by the Court: CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1 at 3; Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 132; Microsoft Corporation v CX Computer Pty Ltd (2002) 187 ALR 362 at 369, [36]. Order 27 rule 12(1) of the Federal Court Rules provides the failure to comply with the subpoena is contempt of court.
123 It is well established that the procedure to be followed by the Court on the return and the calling on of a notice to produce requires a three stage procedure: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372. At 381 Moffitt P (with whom Hutley JA and Glass JA agreed) said:
"The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross‑examination or otherwise."
124 On 20 March 2009 I had ordered that a confidential affidavit to be filed by ASIC on 20 March 2009 be marked confidential and not be disclosed to any person other than a Judge of the Court, the Judge's Associate and the Executive Assistant or to persons who had signed an undertaking in the form attached to the order. Those persons included solicitors and counsel for the applicants and Multiplex.
125 I considered that the persons who had signed the undertakings referred to in that order and subsequent amendments to it should be entitled and allowed to have access to the two documents on pp 228 and 231 of Confidential Exhibit ANS‑6, and that those documents should be made available to those persons on the terms that the undertaking they had signed in relation to ASIC's confidential affidavit applied to the two documents. Having regard to the statements made by Senior Counsel for ASIC subsequently on 7 April 2009 (par [128] post), that access was not pursued by the applicants' counsel.
126 The adjourned hearing of the Notices of Motion came on for hearing on 7 April 2009 when counsel for the applicants called on ASIC to produce the documents referred to in the two Notices to Produce.
127 Prior to that hearing, ASIC sent a letter on 3 April 2009 to my Executive Assistant, copied to the solicitors for the applicants and Multiplex, in which, in response to an earlier request from me, ASIC objected to the release of two confidential documents which appeared in Confidential Exhibit ANS‑6 to the affidavit of Anna Skreiner sworn 6 February 2009 at pp 228 and 229 and pp 231 and 232. These documents were also part of Confidential Exhibit LAM‑11 to the confidential affidavit of Louise Macaulay affirmed 3 September 2007. In the letter ASIC contended that these two documents were covered by both PII and legal professional privilege. The letter also stated:
"ASIC rejects any suggestion of impropriety in not drawing these documents to the court's attention on earlier occasions.
ASIC will not answer the Applicants' Notices to Produce dated 1 April 2009 and 2 April 2009. The reasons for this include the above."
ASIC's statement that it would not answer the notices to produce is not in conformity with the procedure, to which I have referred in pars [121] to [123] above.
128 At the commencement of the hearing on 7 April 2009 Senior Counsel for ASIC, in response to a call from the applicants' counsel to produce the documents referred to in the Notices to Produce made a number of statements which I summarise:
· the Notices were not answered;
· some documents falling within the terms of the Notices to Produce had been found but were not produced;
· there was a reference to the Four Corners broadcast on 5 September 2005 in documents which were included in the material placed before me on 11 September 2007. These documents were to be found at pp 225, 228‑232 and 234 of Confidential Exhibit ANS‑6. They remain confidential exhibits. ASIC was not suggesting that these documents were drawn to my attention;
· ASIC accepted that on the basis of these documents it was relevantly aware of the broadcast of the Four Corners program on 5 September 2005 and the content of the program which was broadcast at the time of the hearing before me on 11 September 2007 and the hearing before the Full Court on 8 May 2008;
· there was no duty on ASIC to disclose to me or to the Full Court the fact of the broadcast of the Four Corners program;
· ASIC had not breached any duty which it owed to the Court;
· the hearing before me on 11 September 2007 could not be categorised as an ex parte application which involved a duty of full disclosure being imposed on ASIC;
· as the purpose of the Notices to Produce had been resolved, namely the forensic exercise of establishing that at the time of the hearing before me on 11 September 2007 and at the time of the hearing before the Full Court on 8 May 2008 ASIC was aware of the broadcast of the Four Corners program, the purposes of the Notices to Produce had been resolved and there was no need for them to be called on.
129 At the hearing on 7 April 2009, ASIC relied upon an affidavit of Abigail Sheppard affirmed on 7 April 2009. Ms Sheppard produced in a confidential exhibit to that affidavit six documents which were contained in an ASIC file containing internal ASIC documents and file notes relating to the Multiplex investigation in 2005 which appeared to her to be relevant to the Notices to Produce. Ms Sheppard also said that searches of archived files had disclosed 30 files located off‑site. I therefore adjourned the further hearing of the call on the Notices to Produce to 21 April 2009 to enable ASIC to determine whether any further documents were to be produced in response to the Notices to Produce.
130 ASIC submitted that the documents which it produced pursuant to the Notices to Produce were privileged from production and inspection on the grounds of PII and, in respect of two of the documents, on the ground of legal professional privilege. I consider that the documents in respect of which legal professional privilege is claimed are so privileged from production for inspection. I am satisfied that they have come into existence for the purpose of a client seeking legal advice in relation to subject‑matter set out in the documents. The fact that those documents have been communicated to ASIC does not destroy the privilege as I consider that there is a common interest between ASIC and the relevant client in relation to the subject‑matter recorded in the documents: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1992] 1 AC 233; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410‑411; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526; University of Western Australia v Gray (No 12) [2007] FCA 396 at [4]; Heydon JD, Cross on Evidence (7th Australian ed, 2004), [25265].
131 The documents sought by the two Notices to Produce have been sought for the limited purpose of establishing that on the date of the hearing before me on 11 September 2007 and on the date of the hearing before the Full Court, ASIC was aware that the Four Corners program on Multiplex had been broadcast on 5 September 2005 and was also aware of the contents of that broadcast insofar as that broadcast stated that someone had blown the whistle at Multiplex and that Multiplex's group accounting general manager had gone to ASIC. At the hearing before me on 7 April 2009 counsel for ASIC acknowledged that ASIC was so aware. For present purposes, the documents sought in the Notices to Produce satisfy no other forensic purpose.
132 On 20 April 2009 Ms Sheppard affirmed a further affidavit in which she explained the steps ASIC had taken, and still needed to take, in order to determine whether there were any further documents to be produced in response to the Notices to Produce.
133 On 21 April 2009, counsel for the applicants did not seek to call on ASIC any further to produce documents pursuant to the Notices to Produce or to seek access to the documents already produced. He adopted this position on the basis that the forensic exercise sought to be accomplished by the Notices to Produce had been satisfied. That exercise was to establish that on 11 September 2007 before me and on 8 May 2008 before the Full Court, ASIC was relevantly aware of the fact of the Four Corners broadcast on 5 September 2005 and the content of that broadcast.