Consideration
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.
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. In particular:
(a) There was evidence about the Produced USB. This was produced to the liquidators of Hastie in the course of the Examination Proceeding. It may well contain documents pertaining to the relevant engagements and thus documents covered by the Production Order. Even if the Produced USB is with the liquidators of Hastie, there is no evidence to suggest that it would not be returned upon request.
(b) Similarly, the Produced Hard Copy Documents may well include documents pertaining to the relevant engagements, and thus documents that are covered by the Production Order. As with the Produced USB, if these documents are with the liquidators of Hastie, there is no evidence to suggest that they would not be returned upon request.
(c) There was evidence regarding the Computer Images. I infer that these comprise a copy of the files on Mr Saayman's laptop and Mr Moore's laptop. Given that they were both involved in the relevant engagements, their laptops may well have contained many documents pertaining to those engagements, and thus many documents covered by the Production Order. It does not appear that any search has been conducted to locate the Computer Images.
59 The Uninvolved Partners submit that any such documents are not covered by the Production Order on the basis that the order refers only to the original documents (ie, the Hastie Statutory Audit and Review Files) and not to copies of those documents. I do not accept this submission. The original discovery order of 5 March 2018 (set out at [5] of the July 2018 Reasons) required DTT to give discovery of: "its audit files (however titled) and working papers" for the relevant engagements; Hastie's ARMC meeting packs and minutes for a certain period; and the file and working papers in relation to the investigating accountants' report contained in the Pathfinder and the Prospectus. In making discovery, the respondents identified a number of categories of documents, including categories 5 to 9 as set out at [7] of the July 2018 Reasons. In my view, it is too narrow a construction of the categories to treat them as covering only one particular set of the documents, namely the set of documents that was in the Litigation Room. Many of the relevant documents are soft copy documents and it is artificial to treat one version as the original document and other versions merely as copies. No doubt, it would be sufficient for the Uninvolved Partners to produce the documents in categories 5 to 9 that were in the Litigation Room, without needing to produce each other copy of those documents. However, I do not accept the submission that documents on the Produced USB and documents forming part of the Produced Hard Copy Documents and the Computer Images are not required to be produced because they are copies.
60 Another way in which it may be possible for the Uninvolved Partners to comply with the Production Order is if other backup copies exist. The evidence of Mr Lee was to the effect that the Audit Network Drive Backup Copy is the only backup copy that is created of the soft copy documents forming part of each Statutory Audit / Review File. However, Mr Lee did not display familiarity with the firm's general backup system and no witness was put forward who had familiarity with such matters. It may well be the case that, as a large professional services firm, the firm makes regular backups of its computer system, including the audit network drive. This is supported by cl 2.9.1 of the firm's current Information Security Acceptable Use Policy (Ex 2), which states that "[i]nformation saved to shared drives is automatically backed up daily and archived monthly". If so, this would result in backups being made of the Hastie Audit Network Drive Backup Copies and the secured "administration" folder on the audit network drive. No inquiries have been made to see whether or not such backups exist. More generally, it does not appear that any investigation has been undertaken to see if there are backups of relevant documents on the firm's computer system. Generally, one gets the impression that it is convenient for the Uninvolved Partners if they are unable to get the documents and they have not tried very hard to overcome the present impediments.
61 I note that a complete copy of all of the documents covered by the Production Order resides on the Relativity Database. Further, copies of many of the documents covered by the Production Order are stored on the CC Laptop. The Uninvolved Partners contend that these copies are covered by legal professional privilege on the basis that they were brought into existence for the dominant purpose of preparing for, or for use in, existing or contemplated judicial proceedings: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Heydon JD, Cross on Evidence (11th Aust ed, 2017), [25275]. On the face of things, this contention appears to be correct. However, I note the potential application of the qualification expressed by Brennan CJ in Propend at 512: "if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege". Further, if it were the case that DTT's lawyers were involved in Mr Saayman obtaining the documents that were in the Litigation Room in order to bring about a situation where the Uninvolved Partners could argue that they are unable to produce the documents in accordance with their discovery obligations, the observations made by Gummow J in Propend at 570 would appear to be apposite. It is unnecessary for present purposes to take these issues any further.
62 The Uninvolved Partners rely heavily on the decision of the New South Wales Court of Appeal in Griffin v Sogelease Australia Ltd (2003) 57 NSWLR 257 (Griffin), particularly at [21], [25]-[35] per Tobias JA (Meagher JA and McColl JA agreeing). The issue dealt with by the Court of Appeal, as described at [29], concerned order 4 of the primary judge's orders. That order was directed to Mr Griffin, requiring him to produce the subject documents to Mrs Griffin and/or her solicitors. In circumstances where the primary judge had held that production of the documents could provide evidence of a series of dispositions designed to hide the proceeds of fraud, the issue as framed by Tobias JA was whether the fact that Mr Griffin was required by the Court's order to produce the documents to Mrs Griffin and/or her solicitors, rather than directly to Sogelease, took the primary judge's order outside the reach of Mr Griffin's privilege against self-incrimination. The primary judge proceeded on the basis that this was the case, but the Court of Appeal disagreed. Tobias JA stated (at [30]) that, in his opinion, objection to the production of documents based on the privilege against self-incrimination is available to any person who, by compulsory process, is required to produce the relevant documents. Tobias JA stated (at [34]-[35]):
34 With respect, it is my opinion that what his Honour did in the present case infringed these principles. By ordering Mr Griffin to produce the relevant documents to Mrs Griffin or her solicitors he was requiring their production by compulsory process, that is, by order of the court. Although Mr Griffin was not required to produce the documents directly to Sogelease he was indirectly required to do so for, once they were in the possession of Mrs Griffin or her solicitors, she was obliged, by the order for discovery against her, to list the documents and produce them for inspection. In my opinion, such an order was impermissible and constituted, without statutory warrant, a justified abrogation of Mr Griffin's rights.
35 In so holding, I have not overlooked the points made by his Honour in par [34] of his judgment and which I have set out (at 262 [20] supra). There is, of course, nothing to suggest that Mr Griffin gained possession of the relevant documents in the present case by inappropriate or unlawful means. But once he had obtained possession then, in my opinion, he was entitled to object to any mandatory order requiring him to produce them in contravention of his right not to do so based upon his privilege against self-incrimination. Given the uncompromising terms in which the High Court in Reid has expressed itself as to there being "no real exception" to the privilege, except where it is abridged by statute or waived, it is not for this Court to create an exception to the otherwise unqualified nature of the privilege based on the fact, if it be the fact, that the person claiming the privilege has deliberately obtained possession of the documents, whether lawfully or unlawfully, for the very purpose of frustrating their production by some other person who might otherwise be bound to produce them. In any event, it was not suggested that, in this case, Mr Griffin either obtained possession of the documents from Mrs Griffin unlawfully or that he did so for the express purpose of frustrating any obligation she may have to disclose them pursuant to any order of discovery made against her.
63 In my view, the issue before the Court on the present application is very different to that considered by the Court of Appeal in Griffin. The Production Order is to the effect that the first respondent, 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. Unlike the order under consideration by the Court of Appeal, the Production Order does not require a person who is entitled to claim the privilege against self-incrimination to produce documents. It does not, for example, require Mr Saayman to produce the relevant documents to the Uninvolved Partners. The question before me on the present application is whether the Uninvolved Partners should be excused from complying with the Production Order or the Production Order be discharged. That is a very different issue to that considered by the Court of Appeal in Griffin.
64 The Uninvolved Partners place emphasis on the fact that approximately 230 of the partners who comprise DTT (being the partners at the relevant times for the purposes of the proceeding) have since left the firm. It is submitted that those who have left the firm do not have control of any relevant documents. For there to be any practical substance in this point it would be necessary to show that none of the Uninvolved Partners has possession, custody or power in respect of the relevant documents. Otherwise, there would not appear to be a need, from a practical point of view, to vary or vacate the order.
65 The evidence includes various copies of the partnership agreement of the firm, and the parties have made submissions about the effect of the terms of that agreement. I do not consider it necessary on this application to analyse the partnership agreement in detail. However, I note the following matters. Pursuant to cl 4.1(a), all Firm Property (which is broadly defined) "is owned by the Equity Partners in their Pro-rata Portions". Clause 4.1(b) provides that a Partner is not entitled to require the realisation or distribution of the Firm Property, or "for the Firm Property to be otherwise dealt with, except as expressly contemplated by this contract". The question for discovery purposes is whether the Uninvolved Partners have possession, custody or power in respect of the relevant documents. This does not necessarily require a dealing with the relevant documents, therefore I do not consider it necessary to identify an express provision in the partnership agreement of the type contemplated by cl 4.1(b) before it can be said that a partner has possession, custody or control of the relevant documents. I note that cl 7.12 refers to Firm Property "so far as practicable" being vested in a Deloitte Entity "to hold upon trust for the Equity Partners". There is no evidence to suggest that such vesting has occurred in relation to the relevant documents. Clause 7.12(b) provides that if, notwithstanding cl 7.12(a), any Firm Property is vested in any Partner, that Partner "will hold it upon trust for the Equity Partners". Again, there is no evidence to suggest that such vesting has occurred in relation to the relevant documents. The provisions of the partnership agreement do not, in my view, establish that the Uninvolved Partners do not have possession, custody or power in respect of the relevant documents. To the contrary, on the basis that the relevant documents are "Firm Property", the agreement provides that the documents are owned by the Equity Partners.
66 The Uninvolved Partners rely on Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 (TNT) at 695-696 per Franki J. The passage relied upon forms part of a ruling made on 6 September 1983 in relation to a subpoena duces tecum issued to a Mr Rochfort. The High Court dealt with an earlier subpoena duces tecum directed to Mr Rochfort in Rochfort v Trade Practices Commission (1982) 153 CLR 134 (Rochfort). In TNT, Franki J was dealing with a subpoena dated 1 August 1983. As noted in TNT at 690, on 20 October 1981 a general meeting of members of the National Freight Forwarders' Association (NFFA) had been held at which a resolution had been passed that the records of the association shall be in the custody of Mr Rochfort as the employee of the association and that he shall have no authority to make such documents or records available to any person or entity save with the express approval of the committee of the association or its chairman. In a ruling dated 22 August 1983 (TNT at 690-693), Franki J adjourned an application by Mr Rochfort to be relieved from production of the documents and afforded the Trade Practices Commission an opportunity to issue subpoenas to the members of the NFFA. The next ruling is dated 6 September 1983 (TNT at 693-696). Franki J noted that the Commission had now served a further 13 subpoenas against a number of corporations to produce the same documents (TNT at 693). Senior counsel for Mr Rochfort did not admit that all of those served were current members of the NFFA, but said that there were no current members of the NFFA who had not received subpoenas (TNT at 693). At 693-694, Franki J set out the responses of each of the defendants and the other persons who or which had been served.
67 Franki J then proceeded to consider whether Mr Rochfort should be relieved from production of the documents. Franki J proceeded on the basis that the privilege against exposure to penalties is available to a corporation (consistently with an assumption that had been made by the High Court in Rochfort): TNT at 694-695. The position, however, has now changed: Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 (regarding the privilege against self-incrimination). Franki J then considered the question of what the Court should do where property is held by a person, such as Mr Rochfort, on behalf of a number of persons in whom the possession, custody and control are vested and at least some of them claim that the production of the documents would expose them to a civil penalty: TNT at 695-696. Franki J noted that, unlike the position considered by the High Court, Mr Rochfort was a servant of the NFFA. Having held that the property of an unincorporated association belongs to all the members, Franki J held that an order for production cannot be made "where the documents are not in the sole possession or power of the party called upon to produce them or the property is not in the possession of the person against whom the order is sought". In Franki J's opinion, it was necessary that subpoenas be issued to "all parties who have possession of the documents sought by a subpoena". Franki J held that the documents the subject of the subpoena to Mr Rochfort were the property of all the members of the NFFA and Mr Rochfort did not have the necessary possession, custody or control of the documents for him to be required to produce the documents the subject of the subpoena. Franki J also stated that: "I can see no reason why any valid claim for privilege against exposure to a civil penalty should be denied to a person in respect of a subpoena to produce property of which it [ie, the person] is an owner together with other persons." He also stated: "Accepting as I do that such a claim may be made, the next question is whether a claim is to be defeated because the other [owner] or other owners raise no objection. In my opinion this would be illogical and I would uphold a valid claim against exposure to a civil penalty by any member of the NFFA." The Uninvolved Partners submit, in their submissions dated 5 November 2018, that this "principle" applies here. As I understand it, this submission is to the effect that where a valid claim for privilege against exposure to penalties is raised by some of the joint owners of documents, this should not be defeated simply because other joint owners raise no objection (or, by parity of reasoning, cannot claim the privilege).
68 I do not accept this submission. First, it is not clear from the passage at 696, that Franki J was stating any such general principle. The conclusion was expressed in relation to the members of the NFFA rather than more generally, and no authority was cited for any such general principle. Secondly, the context in which Franki J made the ruling was very different from the present case. In particular, Franki J was dealing with a subpoena directed to Mr Rochfort, who was an employee of the NFFA, and in circumstances where the resolution of 20 October 1981 had been passed. The present context is very different. The discovery order is directed to the Uninvolved Partners themselves and there is no equivalent resolution. Thirdly, in a later passage at 696, Franki J dealt with the 13 subpoenas that the Commission had issued since the ruling on 22 August 1983. In respect of these subpoenas, Franki J held that "[a]ny documents produced in answer to any of these subpoenas by any person to whom a subpoena was issued without any claim for privilege are available in the ordinary way as documents produced in answer to a subpoena". It will be recalled that the Commission had been afforded the opportunity to serve subpoenas on the members of the NFFA. Although some of the persons served contended that they were not members (see TNT at 694), it is noteworthy that Franki J considered that the documents produced in response to these subpoenas were available in the ordinary way; he did not limit this to documents produced only by non-members.
69 I note that in [20] of Sadie Ville's submissions dated 5 November 2018, it is stated that Mr Saayman was not involved in the audit engagement for the financial year ended 30 June 2010, referring to Mr Finney's affidavit dated 19 October 2018, annexure "TF-2", tab 11, p 166. This may call into question the basis of Mr Saayman's claim based on the privilege against self-incrimination and the privilege against exposure to penalties in respect of the documents for that engagement. However, it is not necessary to decide this issue for the purposes of this application. Further, the point was not the subject of detailed submissions; the focus of the hearing was on whether the Uninvolved Partners should be excused from complying with the Production Order. Accordingly, I do not propose, at least at this stage, to revisit Mr Saayman's privilege claim.
70 Sadie Ville submits that, if necessary, Sabre orders should be made to require the Uninvolved Partners to obey the Production Order by enforcing their presently enforceable rights to recover the files and obtain disclosure of the password: see Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company (1993) 46 FCR 428. Attached to Sadie Ville's submissions dated 5 November 2018 is a proposed amended interlocutory application setting out the orders that are sought in this regard. In light of the views that I have expressed above regarding the ability of the Uninvolved Partners to produce the documents covered by the Production Order, I am not persuaded, at least at this stage, that Sabre orders are necessary.
71 In its further submissions dated 27 November 2018, Sadie Ville submits that the Production Order should be varied so as to no longer excuse Mr Saayman. Sadie Ville submits that: the privilege against self-incrimination operates only to protect a person from being compelled to produce such evidence against himself or herself; it does not entitle its holder to disable other persons from producing documents that might incriminate the holder; and, for this reason, Mr Saayman's claim to privilege against self-incrimination in respect of the materials obtained by him in the unauthorised manner indicated by the evidence is not a bona fide claim to privilege and cannot be maintained: see BTR Engineering (Australia) Ltd v Patterson (1990) 20 NSWLR 724 at 728-729 and, by analogy, Tan v Commissioner of New South Wales Police [2012] NSWSC 1580 at [126] (regarding legal professional privilege). In my view, this submission goes beyond the scope of the application that is presently before the Court. I therefore decline to deal with the submission at this stage.