Federal Court of Australia

Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511

ORDERS

THE COURT ORDERS THAT:

1.    The objection of JP Morgan Securities Australia Ltd, JP Morgan Australia Pty Ltd and JP Morgan Administrative Services Australia Limited (together JPMA) to the Commonwealth Director of Public Prosecutions (the CDPP) and the accuseds inspecting those portions of the documents produced in answer to the subpoenas served on 11 January 2021 in respect of the Type B, Type C and Type D categories of privilege described in the affidavit of Joshua Seth Kyle made 12 February 2021 (the Kyle Affidavit) is upheld.

2.    The objection of JPMA to the CDPP and the accuseds inspecting those portions of the subpoenaed documents for which privilege of category Type A described in the Kyle Affidavit is overruled and the CDPP and each of the accuseds have leave to inspect those portions of the documents.

3.    JPMA is, by 21 May 2021, to produce to the Court a further set of the subpoenaed documents containing redactions of only the Type B, Type C and Type D categories of privilege with a view to the documents containing only those redactions being provided for inspection by the CDPP and the accuseds.

4.    Upon the receipt by the Registrar of the subpoenaed documents referred to in Order 3, the Registrar is to permit the CDPP and each accused to inspect the documents produced pursuant to that Order.

5.    JPMA is, by 21 May 2021, to inform my Associate and each of the parties whether an application for costs or expenses pursuant to r 8.13(1) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) is pursued, noting that, in the event that such a claim is so notified, the Court may make orders in Chambers for the exchange of written submissions so that any issues may be determined on the papers.

6.    There be liberty to the parties to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    On 1 June 2018, the Commonwealth Director of Public Prosecutions (the CDPP) charged three corporate entities and six individuals with having participated in cartel conduct in the period between 7 August and 30 September 2015. The conduct was alleged to have arisen out of the institutional share placement undertaken by Australia and New Zealand Banking Group Limited (ANZ) in August 2015 (the ANZ Share Placement) for which JP Morgan Australia Pty Limited (JPMAPL), Deutsche Bank Aktiengesellschaft (Deutsche Bank) and Citigroup Global Markets Australia Pty Ltd (Citigroup) were the joint lead managers and underwriters (the JLMs).

2    ANZ, Deutsche Bank and Citigroup are the three corporate entities which are the subject of the criminal charges and the six charged individuals were at the time employees of one or other of these entities.

3    The committal proceedings in relation to the charges have concluded and, on 15 December 2020, the Notice of Committal was filed in the Court. On 1 February 2021, the CDPP filed an indictment against the nine accused. It alleges 42 counts of cartel conduct in contravention of ss 44ZZRF and 44ZZRG of the Competition and Consumer Act 2010 (Cth) (the CC Act) as in force in 2015, but not all the accuseds are subject to all counts.

4    On 11 January 2021, the CDPP served subpoenas on three members of the JPMorgan Chase & Co Group (JPMorgan), namely, JPMAPL, JP Morgan Securities Australia Ltd (JPSAL) and JP Morgan Administrative Services Australia Limited (JPMASAL) (together JPMA). The subpoenas required JPMA to produce the notes of interviews and outlines of evidence which JPMorgan’s in-house lawyers and its legal advisors, Gilbert + Tobin, had prepared between 7 September 2015 and 10 November 2015.

5    JPMA responded to the subpoenas on 27 January 2021 stating that it had identified 147 documents answering the description of the subpoenaed documents. It objected to the production or inspection of all but nine of these documents (later varied to 13) and, in respect of the 13, objected to inspection of portions of them on the basis of legal professional privilege. JPMA listed all the documents in a schedule (the Objection Schedule) and identified the basis of claims for legal professional privilege in relation to each.

6    This judgment concerns the questions of whether privilege did attach to the documents when they were brought into existence and, if so, whether it has been waived by the subsequent conduct of JPMA. Those questions are to be determined in the context that JPMA sought and obtained conditional immunities from civil action from the Australian Competition and Consumer Commission (the ACCC) and immunity from criminal prosecution from the CDPP under their respective immunity policies.

7    The indictment is the docket of Wigney J and it is expected that his Honour will be the trial Judge. It was thought undesirable that Wigney J hear and determine the objection by JPMA to production and/or inspection of the subpoenaed documents. Accordingly, on 11 February 2021, Wigney J made an order that “the interlocutory application” be listed for hearing before me. As there is no filed “interlocutory application” to which this order can refer, I have regarded it as referring to JPMA’s objection to production and/or inspection made before Wigney J on 27 January 2021. No party suggested that this understanding was inappropriate.

8    At the hearing, the Court heard submissions from counsel for JPMA, the CDPP, Deutsche Bank, Citigroup and ANZ. Counsel for Deutsche Bank also announced an appearance for Mr Ormaechea (the sixth accused) and Mr Richardson (the seventh accused). The Court had previously received short outlines of submission from the third accused (Mr McLean), Mr Ormaechea, Mr Richardson and Mr Moscati (the ninth accused). Although represented at the hearing, the third and fourth accuseds (Messrs McLean and Roberts) effectively made no submissions. A number of the accuseds adopted the submissions made by others.

9    JPMA claims the privilege. It was not suggested that, for the purposes of determining the two questions now before the Court, any distinction should be made between JPMA, on the one hand, and JPMorgan, on the other.

10    For the reasons which follow, I consider that JPMA has shown that the notes of interview and outlines of evidence were protected by legal professional privilege at the time they were brought into existence but that, save for some limited categories, JPMA waived that privilege by its disclosure of the contents of portions of the documents to the CDPP in October and November 2020.

The ACCC Immunity Policy

11    Because of its centrality to the submissions of JPMA and the parties, it is appropriate to commence by identifying relevant features of the ACCC Immunity and Cooperation Policy for Cartel Conduct (the ACCC Policy) pursuant to which JPMA was granted conditional immunity from civil action. It was common ground that it is the terms of the ACCC Policy issued in September 2014 which are pertinent presently.

12    The purpose of the ACCC Policy is stated in its preface:

An immunity and cooperation policy in relation to cartels encourages insiders to provide information and enables the ACCC to penetrate the cloak of secrecy. When the extent of the immunity to be provided, or the process for recognising cooperation with law enforcement authorities is certain, persons are more likely to take advantage of such a policy and disclose legal and harmful conduct.

Just as importantly, an immunity and cooperation policy that provides incentives to businesses and individuals to disclose illegal behaviour is also a powerful disincentive to the formation of cartels, as potential participants will perceive a greater risk of ACCC detection and court proceedings. An immunity and cooperation policy does not offer a reward to ‘good corporate citizens’. It is a detection tool designed to deliver benefits to all Australians by identifying, stopping and taking action against harmful and illegal behaviour.

13    The ACCC Policy commences with a statement that it “sets out the policy of the ACCC in relation to applications for immunity from ACCC-initiated civil proceedings by those involved in cartel conduct, and how cooperation provided to the ACCC by cartel participants will be recognised”.

14    The “cartel conduct” to which the ACCC Policy refers is conduct in contravention of Div 1 of Pt 4 of the CC Act (which in 2015 and 2016 included ss 44ZZRF and 44ZZRG) and in contravention of s 45(2) of the CC Act.

15    A cartel participant may seek both civil and criminal immunity in respect of cartel conduct (cl 4). The responsibility for granting those immunities lies with the ACCC and the CDPP respectively (cl 5). An application for immunity is to be made to the ACCC in accordance with the procedures set out in the ACCC Policy, as it is the sole point of conduct for applications for both forms of immunity (cl 4).

16    The ACCC assesses applications for immunity against the eligibility criteria contained in the ACCC Policy (cl 6). When it considers that an applicant is eligible for “conditional civil immunity” it will, when relevant, make a recommendation to the CDPP to grant criminal immunity subject to conditions (cl 6).

17    The ACCC Policy provides for three forms of civil immunity: corporate, derivative, and individual. It also provides for two principal stages in the grant of civil immunity: conditional and final. Subject to one proviso, a corporation is eligible for conditional immunity from ACCC-initiated civil proceedings when the eligibility criteria specified in cl 16 are satisfied. Those criteria include:

(a)    the corporation having applied for immunity under the ACCC Policy (cl 16(a));

(b)    the corporation being or having been a party to a cartel, whether as a primary contravenor or in an ancillary capacity (cl 16(a)(i));

(c)    the corporation admitting that its conduct in respect of the cartel may constitute a contravention or contraventions of the CC Act (cl 16(a)(ii));

(d)    the corporation being the first person to apply for immunity in respect of the cartel under the ACCC Policy (cl 16(a)(iii)); and

(e)    the corporation providing full, frank and truthful disclosure, cooperating fully and expeditiously while making the application, and undertaking to continue to do so during the ACCC’s investigation and any ensuing court proceedings (cl 16(a)(vii)).

18    Derivative immunity is available to corporate entities related to the corporation which qualified for conditional immunity and to its current and former directors, officers and employees involved in the cartel conduct (cl 19).

19    Because of the advantage in being the first to apply for immunity, the ACCC Policy permits a person or entity proposing to seek an immunity to approach the ACCC “to request the placement of a marker” (cl 38). The effect of such a placement is to preserve for a limited period the marker recipient’s status as the first applicant for immunity in respect of the cartel (cl 39). This allows marker recipients time “to gather the information necessary to demonstrate that they satisfy the requirement for conditional immunity” (cl 40). So long as a recipient holds the marker for particular cartel conduct, no other person involved in the same conduct will be permitted to take its place in the immunity queue, even if that person is able to satisfy all the eligibility conditions immediately (cl 41).

20    An applicant seeking a marker may do so on “a hypothetical, anonymous basis” but must disclose sufficient information to allow the ACCC to confirm that no other person has applied for immunity or obtained a marker in respect of the cartel (cll 42 and 43).

21    The next step for a marker recipient who wishes to proceed with an application for immunity is to make a “proffer” to the ACCC in the manner for which cll 44-47 provide:

44.    After obtaining a marker from the ACCC, if a party decides to proceed with an immunity application, it will need to provide a detailed description of the cartel conduct. This is known as a ‘proffer’ and can be made orally or in writing. However, the ACCC will create its own records in respect of all marker requests and applications, including proffers received, whether the applications are oral or written.

45.    If a proffer is made orally, the ACCC may record the oral proffer. Recording an oral proffer enables an accurate record of the proffer to be submitted to the ACCC’s legal advisors so that they may provide advice to the ACCC on whether the applicant has been a party to a cartel.

46.    The proffer will need to disclose sufficient information to determine whether the applicant satisfies the criteria for conditional immunity (as outlined in paragraph 16 for corporations and paragraph 28 for individuals).

47.    The applicant will be required to provide specific detail as to the type of evidence that can be provided to the ACCC. The ACCC may require an interview with one or more witnesses, or the production of certain documents to determine whether the applicant meets the conditions for immunity.

(Emphasis added)

22    When the eligibility requirements are satisfied, the ACCC will grant the applicant conditional immunity in relation to the civil proceedings which it may otherwise have brought against the applicant (cl 55), will inform the applicant of the terms and conditions on which the conditional immunity is granted (cll 55 and 56), and will, when relevant, recommend that the CDPP grant criminal immunity subject to conditions (cl 53). Generally, a letter of comfort from the CDPP regarding criminal immunity subject to conditions is provided to the immunity applicant at the same time as the ACCC’s letter granting conditional civil immunity (cl 55).

23    With respect to grants of final immunity, cll 57-59 in the ACCC Policy provide:

57.    In order to receive final immunity the applicant is required to satisfy the following conditions:

(a)    maintain eligibility criteria for conditional immunity (as outlined in paragraph 16 for corporations and paragraph 28 for individuals)

(b)    provide full, frank and truthful disclosure, and cooperate fully and expeditiously on a continuing basis throughout the ACCC's investigation and any ensuing civil or criminal proceedings, and

(c)    maintain confidentiality regarding its status as an immunity applicant and details of the investigation and any ensuing civil or criminal proceedings unless otherwise required by law or with the written consent of the ACCC.

58.    Conditional civil immunity will become final immunity at the conclusion of any ensuing proceedings provided the applicant does not breach any conditions of immunity and maintains eligibility under this policy.

59.    An undertaking pursuant to section 9(6D) of the DPP Act granting criminal immunity subject to conditions will remain in place unless revoked and therefore an undertaking from the CDPP granting final criminal immunity is not required.

(Emphasis added)

24    Clauses 60-63 describe a process by which the ACCC may, if it considers that the immunity applicant has breached the conditions upon which the conditional immunity was granted, inform the applicant that it no longer qualifies for immunity and recommend to the CDPP that the criminal immunity also be revoked.

Undertakings not to prosecute by the CDPP

25    Section 9(6D) of the Director of Public Prosecutions Act 1983 (Cth) (the DPP Act) permits the CDPP to give a person an undertaking that the person will not be prosecuted for a specified offence against a law of the Commonwealth or in respect of specified acts or omissions that constitute, or may constitute, an offence against a law of the Commonwealth. Section 9(6F) provides that an undertaking under subs (6D) may be subject to such conditions, if any, as the Director considers appropriate.

26    Annexure B to the Prosecution Policy of the Commonwealth contains the CDPP’s criteria for granting immunity from prosecution for serious cartel offences (which in 2015 and 2016, included ss 44ZZRF and 44ZZRG). It contemplates two steps after the CDPP has exercised independent discretion in relation to a recommendation from the ACCC (cll 3.4-3.6): first, the CDPP issuing a “letter of comfort” to the effect that the CDPP intends to grant criminal immunity to the applicant in relation to the disclosed cartel conduct in the event that a prosecution is commenced (cl 3.6); and, secondly, the CDPP determining, before commencing any prosecution, whether to grant a written undertaking pursuant to s 9(6D) of the DPP Act granting criminal immunity in respect of the disclosed cartel conduct (cl 3.6).

27    Clause 3.7 of Annexure B provides:

3.7    Both the letter of comfort and any subsequent undertaking under the DPP Act will be subject to the party complying with certain conditions throughout the period of the ACCC investigation and until the conclusion of any criminal proceedings against other cartel participants. Those conditions will be specified in the relevant letter of comfort or undertaking under the DPP Act and will include that:

3.7.1    the party must comply with a cooperation agreement entered into with the ACCC, including by providing on-going full cooperation during the ACCC investigation; and in respect of an individual that:

3.7.2    they will appear as a witness for the prosecution as and where requested in any proceedings against the other cartel participants; and

3.7.3     any evidence they are called upon to give will be given truthfully, accurately and withholding nothing of relevance.

28    Clause 5 in Annexure B provides for the circumstances in which the DPP may withdraw a letter of comfort or revoke a written undertaking provided under s 9(6D) of the DPP Act.

The evidence

29    The whole of the evidence at the objection hearing was documentary. It comprised two affidavits from Joshua Kyle tendered by JPMA (a principal affidavit made 12 February 2021 and an affidavit in reply made 15 March 2021), an affidavit by Rodney Ferral-Smith tendered by the CDPP, an affidavit by Andrew Eastwood tendered by Citigroup, an affidavit from Peta Stevenson tendered by Deutsche Bank, and an affidavit of Belinda Thompson tendered by ANZ. Counsel for Deutsche Bank tendered one additional letter.

30    None of the deponents was required to attend for cross-examination.

Factual setting

31    The matters I record in this section of the reasons (and the next two sections) should, unless otherwise indicated, be regarded as factual findings.

32    On about 10 August 2015, the Litigation, Asia Pacific Group within JPMorgan (APAC Litigation) commenced an internal review of aspects of the conduct of JPMA in relation to the ANZ Share Placement (the Internal Review). Mr Kyle, who at the time held the position of Executive Director and Assistant General Counsel in the APAC Litigation team and Ms Jennifer Parkinson, Managing Director Corporate & Investment Bank (Global) and Litigation (APAC) had primary responsibility for the Internal Review. Mr Kyle deposed to the purpose of the Internal Review in [27] of his affidavit (the Paragraph 27 Matters):

27.    The JPMorgan Internal Review was undertaken to gather information about the conduct which occurred during the 2015 ANZ Placement for the purpose of APAC Litigation, and any external legal advisers engaged by JPMorgan, providing confidential legal advice to JPMorgan, including JPMorgan Australia, in respect of:

(a)    any actual or potential legal risk, exposure or other concern to JPMorgan arising from that conduct; and

(b)    how any such legal risk, exposure or concern might be managed and/or mitigated, including by applying to the [ACCC] for immunity under the ACCC's [Immunity Policy] …

33    Mr Kyle also deposed (and I accept) that the primary steps taken in the Internal Review were to retrieve and review primary documents and communications relating to the ANZ Share Placement and to conduct interviews with the JPMA employees involved in that Placement.

34    On Friday, 28 August 2015, JPMorgan retained Gilbert + Tobin as external legal advisors. Mr Kyle deposed at [28] that Gilbert + Tobin were retained “to advise JPMorgan in respect of issues arising from the 2015 ANZ Placement, including competition law issues and the matters described in paragraph 27 above, and to assist with the conduct of the JPMorgan Internal Review”.

35    On the day following their retainer, Saturday, 29 August 2015, Ms Cass-Gottlieb at Gilbert + Tobin sent an email at 8.17 am to the ACCC requesting a marker under the ACCC Policy. The email stated (relevantly):

On behalf of our client I am requesting a marker in respect of trading in the market for securities in ASX listed companies in respect of securities issued in a capital placement.

36    On Monday, 31 August 2015, the ACCC granted a “first-in” marker to Gilbert + Tobin’s then unidentified client, with that marker to expire at 5 pm on 7 October 2015. The ACCC successively extended the period of the marker to 26 February 2016. All the Interview Notes and Evidence Outlines sought by the subpoenas emanated from interviews conducted after JPMA had obtained the first-in marker.

37    In the period between 7 September and 2 November 2015, lawyers from Gilbert + Tobin and Mr Kyle and Ms Parkinson interviewed nine JPMA employees. There were 11 interviews in total. Mr Kyle participated in all of the interviews and Ms Parkinson in seven. The Gilbert + Tobin lawyers, Mr Kyle and Ms Parkinson each made notes during the interviews recording the substance of what they were told by the JPMA employees (the Interview Notes). Mr Kyle deposed in [33] of his affidavit that he had made notes during the employee interviews so that he would have “a record of the information each interviewee provided about the conduct which occurred during the 2015 ANZ Placement, which APAC Litigation and Gilbert + Tobin could then use for the purpose of providing confidential legal advice to JPMorgan, including [JPMA], in respect of the [Paragraph 27 Matters]”.

38    Mr Kyle also deposed, and I accept, that during the employee interviews:

(a)    each Gilbert + Tobin lawyer … was at all times acting in their capacity as a legal adviser to JPMorgan pursuant to the engagement described at paragraph 28 above;

(b)    Ms Parkinson and I were at all times acting in our capacities as legal advisers to JPMorgan, including JPMorgan Australia, pursuant to the engagement described in paragraphs 24 to 27 above; and

(c)    Mr Christopher was acting in his capacity as an independent legal adviser to Jeffrey Herbert-Smith in respect of issues arising from the 2015 ANZ Placement.

39    Mr Christopher, to whom Mr Kyle referred in subpara (c), was an independent lawyer retained by Mr Herbert-Smith, one of the JPMA employees who was interviewed.

40    Mr Kyle instructed Gilbert + Tobin to “memorialize” the accounts given by the JPMA employees during the interviews. Gilbert + Tobin did so by preparing draft outlines of evidence (Evidence Outlines) for each employee. Mr Kyle deposed at [35] that he had instructed Gilbert + Tobin to “memorialize” the accounts of the employees “so that APAC Litigation and Gilbert + Tobin would have records of the information each interviewee had provided about the conduct which occurred during the 2015 ANZ Placement, which APAC Litigation and Gilbert + Tobin could use for the purpose of providing confidential legal advice to JPMorgan, including [JPMA] in respect of the [Paragraph 27 Matters]”.

41    Mr Kyle also deposed (and I accept) that, other than in the case of the non-redacted portions of the 13 documents to which JPMA makes no objection to inspection, neither the Interview Notes nor the Evidence Outlines have been disclosed to anyone other than in-house lawyers employed, and external legal advisers engaged, by JPMorgan.

42    On 9 November 2015, lawyers from Gilbert + Tobin, HWL Ebsworth (who had also been retained by JPMorgan) and Mr Kyle attended an office of the ACCC to make orally the “proffer” contemplated by cl 44 of the ACCC Policy. The Court was provided with relatively little evidence concerning the content of the proffer. This was understandable as each of JPMorgan and the ACCC claims legal professional privilege with respect to the recording of, and notes taken during, the meeting. Mr Kyle did, however, depose that the Interview Notes and Evidence Outlines were not disclosed to, nor discussed with, the ACCC during the 9 November 2015 meeting. He described the “proffer” as being “a high-level overview of the events which had occurred during the 2015 ANZ Placement and the possible legal implications of these events”, without any particular matters being attributed to an account of any of the JPMA employees in his or her interviews.

43    On 26 February 2016, the ACCC informed Gilbert + Tobin that it considered “JPMorgan” to be eligible to be considered for conditional immunity under the ACCC Policy.

44    By letter to the ACCC dated 21 March 2016, HWL Ebsworth applied for civil and criminal immunity for JPMAPL and for derivative immunity for JPMSAL and nine employees. By an email on 10 May 2016 to Gilbert + Tobin, the ACCC attached its own letter granting conditional civil immunity to JPMAPL and conditional derivative civil immunity to two of its employees (Mr Dewar and Mr Herbert-Smith) and a letter of 6 May 2016 from the CDPP granting criminal immunity to the same persons.

45    By letter dated 1 June 2016, Gilbert + Tobin sought civil and criminal immunity for JPMASAL with derivative immunity to JPMAPL and JPMSAL.

46    By letter dated 23 June 2016, the ACCC informed Gilbert + Tobin that it had substituted JPMASAL as the immunity applicant, that it granted it conditional civil immunity and that it granted derivative civil immunity to JPMAPL, JPMSAL and to eight employees of JPMASAL. It also provided to Gilbert + Tobin a letter from the CDPP of 23 June 2016 containing the grant of criminal immunity to each of the same persons.

47    The ACCC letter informed Gilbert + Tobin that JPMASAL had been granted conditional immunity in respect of cartel conduct in which it had engaged “with two competing investment banks in connection with the arrangement of the placement of new fully paid shares in the capital of ANZ on 7 August 2015” and continued:

The conduct involves the investment banks entering into contracts, arrangements or understandings containing cartel and/or exclusionary provisions, including provisions with the purpose, effect or likely effect of:

[5.1]    preventing, restricting or limiting the supply by the investment banks of interests or rights in ANZ shares to persons or classes of persons; and/or

[5.2]    fixing, maintaining or controlling the price of ANZ shares supplied or likely to be supplied by the investment banks,

contrary to ss 44ZZRJ and/or 45(2) of the [CC Act].

48    The ACCC letter then set out the conditions on which conditional immunity was granted:

[9]    This grant of conditional civil immunity is subject to the following conditions.

Conditions

[9.1]    JPM Administrative Services must continue to provide full, frank and truthful disclosure and cooperation to the ACCC and withhold nothing of relevance.

[9.2]    JPM Administrative Services must continue to satisfy the eligibility criteria for immunity under the Immunity Policy.

[9.3]    JPM Administrative Services must undertake to maintain, and must maintain, confidentiality with respect to its cooperation with the ACCC.

…

[11]    In applying for immunity under the Immunity Policy, JPM Administrative Services acknowledges that the ACCC’s grant of immunity is conditional. The ACCC may revoke this conditional grant of civil immunity in accordance with the Immunity Policy if JPM Administrative Services fails to satisfy the conditions in paragraph 9 of this letter.

[12]    If the ACCC revokes conditional immunity, the ACCC and/or the CDPP may use against your client in proceedings for breach of the law, any documentary or other information your client has provided.

49    The letter from the CDPP of 23 June 2016 stated that the grant of conditional immunity was subject to the following conditions:

[i]    That JPM Administrative Services/the Derivative Immunity Applicant continues to provide full, frank and truthful disclosure and cooperation to the ACCC (including by withholding nothing of relevance) throughout the course of the ACCC’s investigation and any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct.

[ii]    That JPM Administrative Services/the Derivative Immunity Applicant continues to satisfy the eligibility criteria for immunity under the Immunity Policy and Annexure B throughout the course of the ACCC’s investigation and any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct.

[iii]    That JPM Administrative Services/the Derivative Immunity Applicant undertakes to maintain, and does maintain, confidentiality with respect to both its/their co-operation with the ACCC and any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct.

(Emphasis added)

50    At various times since March 2016, the ACCC has itself interviewed the JPMA employees and, on the basis of those interviews, has prepared witness statements which have been provided to the accuseds.

The ACCC and the CDPP seek the Interview Notes and Evidence Outlines

51    The committal proceedings on the charges against the accused commenced in the Local Court of New South Wales in 2019. The examination of witnesses under s 82 of the Criminal Procedure Act 1986 (NSW) concluded on 24 July 2020. In the course of the committal proceedings, various of the accuseds had pressed the CDPP to provide them with the documents generated during the Internal Review.

52    By a letter on 10 August 2020 to Gilbert + Tobin, the ACCC, at the instigation of the CDPP, asked JPMA to provide a description of the documents it held recording its employees’ accounts provided during the Internal Review in which it said:

The [CDPP] has now requested that [JPMA] identify and provide a brief description of all documents in its possession or control that record an account of events provided by a Relevant Person … in the course of the investigation conducted by or on behalf of JPMA, concerning the ANZ institutional share placement in August 2015.

The letter went on to define a “Relevant Person” to be one of 10 employees of JPMA.

53    Gilbert + Tobin responded to the ACCC on 18 August 2020 informing it of the steps taken to identify the documents requested, offering to provide a schedule listing the notes and interview memoranda prepared by Gilbert + Tobin in late 2015 identified to that time, and indicating the time necessary to undertake an exhaustive review to identify all the documents which might match the description in the ACCC request. They concluded their letter with an assertion of legal professional privilege:

For the avoidance of doubt, communications and documents made/or prepared in connection with the Internal Review are subject to claims for legal professional privilege which JPMorgan has not waived and does not waive.

54    On 19 August 2020, Mr Bezzi and Ms Won of the ACCC discussed the CDPP request with Ms Cass-Gottlieb and Mr Mackenzie of Gilbert + Tobin, but the evidence did not disclose the content of that discussion. In a letter the following day, the ACCC informed Gilbert + Tobin:

Following our discussion, we have spoken with the CDPP and the CDPP has asked us to seek the following from you on behalf of your client:

a.    a schedule listing all notes and internal interview memoranda (as described in your letter) prepared by Gilbert + Tobin in late 2015; and

b.    a schedule listing any notes taken by JP Morgan lawyers during the 2015 interviews (as defined in your letter).

55    By letter dated 28 August 2020, Gilbert + Tobin provided a schedule (the 28 August Schedule) listing 72 separate documents, comprising:

 (a)    the notes of each of the 2015 Interviews taken by Gilbert + Tobin Lawyers;

(b)    the internal interview memoranda prepared by Gilbert + Tobin in respect of each 2015 interview between September and November 2015; and

(c)    the notes taken during the 2015 Interviews by JP Morgan lawyers in attendance.

56    Gilbert + Tobin repeated the assertion of legal professional privilege in the documents identified in the 28 August Schedule.

57    Ms Cass-Gottlieb and Mr Mackenzie discussed the ACCC request with the ACCC on 11 September 2020. In that discussion, the ACCC officers conveyed the CDPP’s request that JPMA produce the Evidence Outlines and provide an undertaking that the Outlines did not omit any material matter contained in the Interview Notes. The ACCC followed up that request with an email to Gilbert + Tobin on 14 September 2020 in which it said:

We have spoken with the CDPP and clarified the two issues that you raised with us during our conversation on 11 September 2020.

First, you informed us that the draft outlines and proofs of evidence were not shown to or acknowledged by the witnesses and asked whether that would affect the CDPP's position. We have confirmed that the CDPP's position is that it requires JP Morgan to produce these documents notwithstanding the fact that they were not shown to or acknowledged by the witnesses. If the CDPP forms the view that these documents need to be disclosed to the defendants, it will inform the defendants of the fact that they have not been shown to or acknowledged by the witnesses.

Second, you asked whether there were additional measures that could be put in place to restrict access to the draft outlines and proofs of evidence to external lawyers, at least during the case conference phase. The CDPP's position is that if the draft outlines or proofs of evidence contain confidential information, which has not already been disclosed to the defendants in these proceedings as part of the brief of evidence, JP Morgan should identify that information when is (sic) discloses the documents to the CDPP. When the CDPP reviews the documents, it will give consideration to whether this information can be redacted or access can otherwise be restricted. We note that the case conferences themselves are confidential and there is a prohibition on publication of any case conference material in s80 of the Criminal Procedure Act NSW.

(Emphasis added)

58    There were further telephone discussions between Gilbert + Tobin and the ACCC in September 2020. It is apparent that the CDPP, via the ACCC, was placing pressure on JPMA to produce the Evidence Outlines by reference to the conditions to the grant of conditional immunity conveyed on 23 June 2016. That was evident in the ACCC email to Gilbert + Tobin on 21 September 2020 (referred to in [72] of Mr Kyle’s first affidavit) which included:

The purpose of this email is to inform you that the CDPP has noted that the Director’s criminal immunity to [JPMASL] was subject to the condition that JPM “continues to provide full, frank and truthful disclosure and co-operation to the ACCC (including by withholding nothing of relevance) throughout the course of the ACCC’s investigation and any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct”.

The CDPP’s position is that it requires JPM to disclose the items requested in my email dated 14 September 2020 as part of JPM’s co-operation in the Operation Deacon prosecutions.

(Emphasis added)

59    That letter led to three meetings between the lawyers from Gilbert + Tobin, the ACCC and the CDPP in late September 2020.

60    At the first meeting, on 25 September 2020, the Gilbert + Tobin lawyers asserted JPMA’s legal professional privilege. The CDPP lawyers explained the forensic purpose of the CDPP in seeking production of the Interview Notes and Evidence Outlines, including the relevance (and importance) of disclosure of the initial accounts of the JPMA employee to the discharge by the CDPP of her duty of disclosure in the criminal prosecution. Ms Cass-Gottlieb alluded to the possibility of the documents being subpoenaed and it seems there was some discussion about the extent to which JPMA’s privilege could be protected.

61    At the second meeting, on 29 September 2020, the Gilbert + Tobin lawyers emphasised JPMA’s concern to maintain its legal professional privilege but conveyed the willingness of JPMA to participate in a meeting with the CDPP in which they would provide orally “the answers likely to be given by the JPMA [witnesses] from their first accounts”, using the language given by the witnesses in those first accounts. Gilbert + Tobin did not have instructions at that stage as to a recording by the CDPP of those accounts. The term “first accounts” was a reference to the accounts given by the employees as recorded in the Interview Notes and Evidence Outlines, these being the first in time of accounts given by the employees.

62    At the third meeting on 30 September 2020, the CDPP stated the necessity for the oral accounts proposed by Gilbert + Tobin to be recorded and asked if Gilbert + Tobin could provide a transcript of them. Ms Cass-Gottlieb responded that JPMorgan was comfortable with “running through slowly” the accounts from the Evidence Outlines but did not wish to provide them in writing. A CDPP lawyer asked “can you explain how waiver (I infer waiver of the legal professional privilege) works given JPM’s proposal?” Ms Cass-Gottlieb responded by saying that the Gilbert + Tobin lawyers would “use the language of the first account without reading out the full account to address the area of consistency of evidence”. She also referred to the “level of comfort” which JPMorgan sought in the process.

63    It seems that agreement was reached on 30 September 2020 on the process for partial oral disclosure of the evidence outlines. Mr Kyle deposed to the instructions which he had given in relation to this process:

[75]    … I instructed Gilbert + Tobin to provide an "oral proffer" to the CDPP, being an oral description of the factual evidence which JPMorgan expected each Relevant Person would give at trial in respect of the core conduct in which they were involved during the 2015 ANZ Placement based on the account that person provided during the 2015 Witness Interviews, as recorded in the Interview Notes and Outlines of Evidence.

(Emphasis added)

64    Mr Kyle also deposed that, when he gave this instruction, he had understood that JPMASAL and the derivative immunity holders were at risk of losing their conditional immunity:

[73]    I understood that:

(a)    the immunity granted by the CDPP to JPMASAL (as described in the CDPP’s letter dated 23 June 2016 referred to in paragraph 43 above) was conditional and that JPMASAL was required to continue to comply with all conditions imposed by the CDPP on its grant of immunity in order to retain immunity from criminal prosecution; and

(b)     the CDPP’s position described in paragraph 72 above meant JPMASAL, as the primary immunity holder, as well as the derivative immunity holders, were at risk of losing their immunity from criminal prosecution by the CDPP if JPMorgan did not disclose the information described in the ACCC’s 14 September 2020 email.

65    At the objection hearing, JPMA submitted that the evidence showed that it had been “effectively compelled” to make the partial disclosures to the CDPP in late 2020.

The partial disclosures in October and November 2020

66    The meetings in which Gilbert + Tobin made oral disclosure of parts of the Evidence Outlines occurred on 2 October 2020 and on 13 November 2020. The attendees at the first meeting were Ms Cass-Gottlieb and Mr Mackenzie from Gilbert + Tobin and Ms Single SC, Mr Ferral-Smith, Ms Neville and Mr McGinness from the CDPP. The attendees at the second meeting were Ms Cass-Gottlieb and Ms Platford from Gilbert + Tobin, and Mr Ferral-Smith and Ms Boyle from the CDPP.

67    In the first meeting, Ms Cass-Gottlieb and Mr Mackenzie took turns reading aloud passages from the Evidence Outlines of Messrs Herbert-Smith, Galvin, Dewar and Bainbridge. In the second meeting, Ms Cass-Gottlieb did all the reading.

68    The second meeting was preceded by a meeting on 6 November 2020 in which Mr Ferral-Smith asked Ms Cass-Gottlieb and Mr Mackenzie to have JPMA provide oral accounts from the remaining six JPMA witnesses. He also informed Ms Cass-Gottlieb and Mr Mackenzie that the ACCC witness taking methods were being challenged by the accuseds, so that the ACCC wished to obtain the “first accounts” of all the remaining witnesses “to demonstrate [their] consistency or inconsistency with the accounts given to [the] ACCC”. JPMA acceded to the ACCC request and, in the second meeting, Ms Cass-Gottlieb read aloud from the Evidence Outlines of Mr Priestley, Mr Newton, Ms Tranter, Mr Best and Mr Leung.

69    The information which Ms Cass-Gottlieb and Mr Mackenzie provided in the two meetings corresponded with, and was drawn from, the unredacted portions of the 13 documents produced by JPMA in answer to the subpoenas to which it makes only a partial objection to inspection. JPMA does not object to inspection of those unredacted portions.

70    Mr Kyle deposed, and it was not disputed, that in each meeting, the Gilbert + Tobin lawyers provided the accounts by reference to identified topics. They did so by saying words to the effect “this is the evidence JP Morgan expects will be given in respect of [the topic] by [the named employee] based on their first account”. They did not provide any other information corresponding with, or drawn from, the subpoenaed documents.

71    Lawyers from the CDPP took notes during the meetings on 2 October and 13 November 2020. The manner in which Ms Cass-Gottlieb and Mr Mackenzie read from the documents in the respective meetings facilitated the CDPP lawyers making verbatim notes.

72    Following each meeting, CDPP staff transcribed the accounts given orally and, on 21 October and 16 November 2020 respectively, the CDPP provided each accused with a copy of the transcribed accounts. Those provided on 21 October 2020 comprised nine and a half typed pages and indicated the evidence which JPMA expected to be given by the employees on 12 topics. Those provided on 16 November 2020 comprised seven and a half pages and indicated the evidence which JPMA expected to be given by the employees on 14 topics.

73    The CDPP provided to Gilbert + Tobin drafts of the transcribed accounts given on 13 November 2020 so as to give them the opportunity to suggest any amendments before they were provided to the accuseds. Gilbert + Tobin did suggest some edits and the CDPP took account of those in the transcriptions which were provided to the accuseds. The evidence did not disclose whether the CDPP had done likewise with respect to the transcribed accounts following the meeting on 2 October 2020. I infer that it did not but am satisfied in any event that JPMA, by Mr Kyle, knew at the time of each meeting, that the CDPP would provide transcribed accounts to the accuseds. So much had been made plain in the ACCC email to Gilbert + Tobin on 14 September 2020 set out earlier in these reasons.

74    The 12 topics in respect of which on 2 October 2020 the Gilbert + Tobin lawyers read the evidence expected to be given by the four employees were:

75    Ms Cass-Gottlieb used (at least in substance) the same topic headings on 13 November 2020 in reading the expected evidence of the JPMA employees, but included two additional topics:

    9 am call on Friday 7 August; and

    Syndicate and issuer calls – role of Syndicate banks.

76    It was the Gilbert + Tobin lawyers or JPMA who identified the topics, not staff of the CDPP.

77    It was not in issue that, until making the partial disclosures on 2 October 2020, JPMA had maintained the confidentiality of the documents in question.

JPMA’s claims of legal professional privilege

78    JPMA claims privilege on four different bases over portions of the 147 documents.

79    The first category (to which JPMA referred as “Type A”) is a claim in respect of parts of 13 documents in the Objection Schedule and in respect of the whole of the remainder on the basis that these were records created by Gilbert + Tobin and APAC Litigation lawyers during and shortly after the employee interviews “for the purpose of JPMorgan obtaining confidential legal advice from Gilbert + Tobin and in-house JPMorgan lawyers in connection with the 2015 ANZ capital raising”. The documents in this category are said to have been prepared for the dominant purpose of JPMorgan obtaining legal advice, that is, they recorded factual matters on the bases of which legal advice was sought.

80    The second category (Type B) concerns parts of the 147 documents recording communications said to have been made for the dominant purpose of JPMorgan obtaining legal advice in connection with the ANZ Share Placement “jointly with other parties at the time of the 2015 ANZ capital raising”. Mr Kyle deposed that the documents in this category record confidential communications between the JLMs and Allen & Overy, who had been retained jointly by the JLMs to provide legal advice to them during the ANZ Share Placement, and were prepared for the dominant purpose of the provision of that advice.

81    The third category (Type C) is a claim in respect of parts of the documents said to have been made for the dominant purpose of JPMorgan obtaining legal advice in connection with the 2015 ANZ capital raising “at the time” of the 2015 ANZ capital raising. Mr Kyle deposed that the documents in this category record confidential communications between JPMA employees and APAC Litigation or Gilbert + Tobin lawyers during the ANZ Share Placement for the dominant purpose of those lawyers providing legal advice in respect of matters arising from or relating to the Placement.

82    The final category (Type D) is a claim in respect of parts of the 147 documents said to record communications made for the dominant purpose of JPMorgan obtaining legal advice in connection with the 2015 ANZ capital raising “following the 2015 ANZ capital raising”. Mr Kyle deposed that the communications in this category comprise internal notes or comments made by APAC Litigation or Gilbert + Tobin lawyers for the dominant purpose of those lawyers providing legal advice to JPMorgan, including JPMA, in respect of the Paragraph 27 Matters. In its reply submissions, JPMA clarified that the Type D claims are made only in respect of documents of this kind.

83    JPMA’s Objection Schedule identifies with specificity the parts of each document to which it is said each category of legal professional privilege attaches. The Type A claims comprise the great majority of the claims with the Type B, C and D claims being made in the main only in respect of particular sentences or parts of sentences. There are instances in which the privilege Types overlap.

84    Neither the CDPP nor any of the accuseds seek access to those portions of the documents for which JPMA claims privilege in the Type B and Type C categories. Further, they do not seek access to any parts of the documents in the Type D category to the extent that those parts disclose the substance of legal advice provided to JPMA, as distinct from disclosing factual matters. That is to say, the CDPP and the accuseds do not seek access to those parts of the documents in Type D containing legal advice, or comments in the nature of legal advice, to JPMA.

85    JPMA produced to the Court the 13 documents for which it claims legal professional privilege over portions only with those portions redacted. Pursuant to an order of the Court, JPMA produced to the Court all the remaining documents but inspection of these documents has been denied to the CDPP and the accuseds pending the determination of JPMA’s claim of privilege. These documents are, in the main, the Interview Notes and the drafts and final versions of the Evidence Outlines prepared by the Gilbert + Tobin lawyers and by JPMA’s in-house lawyers between 7 September and 10 November 2015, although there are three documents (Nos 145-147) bearing 2016 dates.

Legal professional privilege – principles

86    It is the common law principles concerning legal professional privilege which are to be applied in this case: Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [3]-[4], [16]-[28], [64].

87    Legal professional privilege is a substantive principle of the common law with an important role in the effective and efficient administration of justice: Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 93-4. It has been described as “a practical guarantee of fundamental constitutional or human rights” and “a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality”: Carter v Managing Partner, Northmore Hale Davy & Leake [1995] HCA 33; (1995) 183 CLR 121 at 161.

88    Legal professional privilege, when it exists, precludes the coerced disclosure of information or documents which would reveal communications between clients and their lawyers made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings: Daniels Corporation Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, (2002) 213 CLR 543 at [9]; Esso at [35], [61].

89    In Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685, Stephen, Mason and Murphy JJ stated the rationale for the privilege:

The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exercised by judicial decision.

90    This passage in Grant v Downs was endorsed by the High Court in Glencore International AG v Commissioner of Taxation [2019] HCA 26; (2019) 265 CLR 646 at [27].

91    Legal professional privilege, when it exists, is (subject to some exceptions which are not presently pertinent) unqualified and will operate despite other matters of important public interest. Thus, in Glencore the High Court said:

[29]    It was recognised in Grant v Downs that there was another, more general, public interest which legal professional privilege did not promote. That public interest lies in the fair conduct of litigation, which requires that all relevant documentary evidence be available. But the public interest which supports the privilege is paramount to the more general public interest. In the provision of the privilege the law has struck the balance between two competing public interests. Consequently, once the privilege is found to exist, no more is required for effect to be given to it. In that sense it may be described as absolute.

[30]    The paramountcy afforded to the public interest which the privilege supports can have serious consequences. By way of example, an accused person can be denied access to documents which might assist his or her defence. Because of the significance of the effect of the privilege on the conduct of litigation, and the other considerations identified in Grant v Downs, it was there said that the privilege "should be confined within strict limits". That note of caution was to be repeated in subsequent cases.

(Citations omitted)

92    The proposition that persons cannot be compelled to produce on subpoena documents which are subject to legal professional privilege, even though those documents may establish the innocence of persons charged with criminal offences or materially assist their defence, was affirmed in Carter v Northmore Hale Davy & Leake.

93    Several of the submissions sought to elaborate the meaning of “dominant purpose”. Counsel for JPMA noted that, in Esso at [58], Gleeson CJ, Gaudron and Gummow JJ had regarded the following statement as appearing close to a dominant purpose test, namely, that “if a document is created for the purpose of seeking legal advice, but the maker has in mind to use it also for a subsidiary purpose which would not, by itself, have been sufficient to give rise to the creation of the document, the existence of that subsidiary purpose will not result in the loss of privilege”.

94    Several counsel referred to Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 in which, in relation to a provision in the Income Tax Assessment Act 1936 (Cth), the plurality said that “in its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing, or most influential purpose”. Counsel noted that this meaning of “dominant” has been applied in the context of several disputes about the existence of legal professional privilege, including Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247 (CoT v Pratt Holdings) at [30]; AWB Ltd v Cole [2006] FCA 571, (2006) 152 FCR 382 at [105]; Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [39].

95    The parties’ submissions referred to several other non-contentious propositions concerning the existence of legal professional privilege, including:

(a)    it is JPMA which has the onus of establishing its claim for privilege. It may do so by reference to the nature of the documents recording the communications or by evidence: Grant v Downs at 689;

(b)    the evidence relied upon to establish a claim for privilege must be focused and specific: Barnes v Commissioner of Taxation [2007] FCAFC 88; (2007) 242 ALR 601 (Barnes v CoT) at [18]. Evidence must be provided in respect of each communication: Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 at [29]. Conclusionary assertions of purpose are not sufficient to make out a claim for privilege: National Crime Authority v S (1999) 29 FCR 203 at 211; Kennedy v Wallace [2004] FCAFC 337, (2004) 142 FCR 185 at [13]; Barnes v CoT at [18];

(c)    the purpose for which a communication is made or a document brought into existence is a question of fact, to be determined objectively having regard to the evidence, the nature of the communication or documents and the parties’ submissions. That purpose will ordinarily be that of the maker of the communication or document, although that may not always be the case: Hartogen Energy Ltd (in liq) v Australian Gas Light Co [1992] FCA 322, (1992) 36 FCR 557 at 568; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59, (2002) 4 VR 332 at [14];

(d)    putting to one side copying of documents, the dominant purpose for the creation of a document is to be determined at the time of its production;

(e)    the evidence given by the maker of the document or by the person who authorised or procured it as to its purpose is not conclusive of the issue of purpose, and the privilege is not “necessarily or conclusively established by resort to any verbal formula or ritual”: Grant v Downs at 689; Hartogen Energy at 568-9. However, an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: CoT v Pratt Holdings at [30];

(f)    if a communication was made or a document brought into existence for two purposes, both of which are of equal weight, neither can be said to be the dominant purpose;

(g)    it is open to the Court to find that parts only of a document were created for the dominant purpose attracting privilege: Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd [1993] FCA 548, (1993) 43 FCR 408 at 415; CoT v Pratt Holdings at [30];

(h)    the privilege is that of the client, not of the lawyer: Z v New South Wales Crime Commission [2007] HCA 7; (2007) 231 CLR 75 at [35]; and

(i)    communications made or documents prepared for the dominant purpose of obtaining legal advice do not cease to be privileged because the communication or document is not ultimately used for that purpose: Grant v Downs at 677; Kennedy v Wallace at [230]-[234] (Allsop J).

Are the documents privileged?

96    ANZ and Mr Moscati contended that JPMA had not established that the Interview Notes and Evidence Outlines had been prepared for a privileged purpose. The accuseds, other than Citigroup, Deutsche Bank and Messrs Tuchman, McLean and Roberts, adopted the submissions of ANZ on this issue. The CDPP did not contest JPMA’s claim that the documents had been the subject of privilege when they were brought into existence, but contended that JPMA had by its subsequent conduct waived that privilege. That is the issue to be addressed in the next section of these reasons.

97    In the written submissions provided in advance of the objection hearing, ANZ submitted that JPMA had not discharged the burden of demonstrating that the dominant purpose of the Internal Review had been to obtain legal advice “when another, unacknowledged, purpose for the bringing of the documents into existence was to facilitate an application by JPMorgan for immunity”. It submitted that the following features in the chronology of events indicated that JPMA had had this other purpose:

(a)    Mr Kyle had deposed in [27] of his affidavit that the purpose of the Internal Review had been to provide confidential legal advice to JPMorgan, including JPMA, in respect of two matters:

(i)    any actual or potential risk, exposure or other concern to JPMorgan arising from the conduct occurring during the ANZ Share Placement; and

(ii)    how any such legal risk, exposure or concern might be managed and/or mitigated, including by applying to the ACCC for immunity under the Immunity Policy;

(b)    eighteen days later, on 28 August 2015, JPMA had engaged Gilbert + Tobin to advise it in respect of issues arising from the ANZ Share Placement, including competition law issues and advising on an application to the ACCC for immunity;

(c)    early on the following morning, Gilbert + Tobin had sent the email to the ACCC seeking a “first-in” marker under the ACCC Policy;

(d)    a phone call between Ms Cass-Gottlieb and Mr Ghali of the ACCC on Sunday, 30 August 2015 indicated that Gilbert + Tobin were investigating whether there had been “a contract, arrangement or understanding” about a “possible output restriction” in respect of ASX listed securities attracting s 44ZZRF and/or s 44ZZRG of the CC Act;

(e)    the ACCC’s grant of a “first-in” marker to Gilbert + Tobin’s client stated that it had been granted “to enable your client to ascertain whether they wished to apply for immunity under the ACCC Immunity Policy”;

(f)    on 29 September 2015, Ms Cass-Gottlieb had sought an extension of the marker period of one month “to complete the internal investigation”. Further, on 3 November 2015, Ms Cass-Gottlieb had identified her client to the ACCC, had requested a meeting to discuss the conduct which was the subject of the marker and had sought an extension of the marker to allow that meeting to take place; and

(g)    in the period from 29 September 2015 to 3 November 2015, Gilbert + Tobin had prepared, progressed and finalised the Evidence Outlines for each witness (apart from Mr Dewar whose outline was finalised on 10 November 2015 after a final interview on 2 November 2015).

98    ANZ also submitted that JPMA’s conduct should be assessed in the context of the ACCC requirement that the proffer by a marker recipient “contain the information and evidence that the applicant is able to provide from their internal investigation regarding the nature and extent of the cartel conduct” (emphasis in the original). Counsel emphasised ACCC’s requirement that a marker recipient provide “a detailed description of the cartel conduct” in order to make a proffer. He submitted in addition that the ACCC Policy evidences three elements: an investigation by the immunity applicant; the disclosure of the results of that investigation by the immunity applicant; and an undertaking by the recipient of conditional immunity to continue to cooperate, including by fully and frankly disclosing relevant information and withholding nothing of relevance.

99    ANZ submitted that this chronology of events indicated, when considered objectively, that, having obtained a first-in marker, JPMA had conducted the Internal Review in order to obtain sufficient factual material to proceed to the proffer stage. It submitted that, at the least, the material suggested that JPMA had had a second and equal purpose to that to which Mr Kyle deposed, namely, bringing the documents into existence to enable it to provide the ACCC with a compliant proffer and thereby to facilitate the perfection of its first-in marker.

100    ANZ also submitted that, rather than providing “focused and specific’ evidence, Mr Kyle had done no more than make, in conclusionary terms, the assertion that the purpose of the Internal Review had been to obtain “confidential legal advice”.

101    ANZ’s oral submissions contained an extended position. Counsel characterised the Interview Notes and Evidence Outlines as “enduring repositories of information obtained in the investigation process” and submitted that, on the evidence, JPMA had had three purposes for the creation of “the repositories of information”, namely, providing “a stable factual basis”:

(a)    for advice from Gilbert + Tobin about the matters to which Mr Kyle deposed in [27] of his affidavit;

(b)    to enable JPMA to make a credible and compliant application for immunity in the event that it decided to do so; and

(c)    to enable JPMA to comply with the conditions of immunity if granted, including by giving full and frank disclosure and by withholding nothing of relevance.

102    Counsel then submitted that, because Mr Kyle’s affidavit had addressed only the first of these purposes, JPMA had not discharged its onus of proving that it had been the dominant purpose for the communications recorded in the documents.

103    In support of this submission, counsel for ANZ referred to the separate judgment of Allsop J in Kennedy v Wallace in which it had been found that the author of two notes (Mr Kennedy) had not established that they had been brought into existence for the dominant purpose of obtaining legal advice. This was so for two principal reasons: first, an objective consideration of the evidence suggested that there had been multiple purposes for the preparation of the notes and, secondly, inadequacies in the manner in which Mr Kennedy had sought to establish the requisite purpose. In relation to the second of these matters, Allsop J said:

[168]    … The passive voice is used. This, as a matter of form, could have been objected to, not out of pedantry, but because it tends to disguise the necessary matter for consideration – the purpose of Mr Kennedy. Further, it is unclear what was meant by “legal advice”. Was it just advice from someone who was in fact a lawyer, as [9] of the first affidavit, restated by [5] of the second affidavit, tended to suggest? The bald conclusory assertion about the note in the passive makes it difficult to tell … These paragraphs can be accepted at face value as stating that a purpose of the creation of the notes was the obtaining of some legal advice, depending upon what was meant by that phrase. The language used in the affidavits set in the context of the multi-faceted role of Mr Hafner does not enable one to conclude, however, that the dominant purpose of the creation of the notes as a whole or any particular part of them was the obtaining of legal advice as understood in the principles governing the privilege. These paragraphs do not state that there was no other purpose in making the notes; these paragraphs do not seek to give information about the weight or preponderance of the stated purpose. That is partly a function of the use of the passive voice. As I have said, there were no doubt multiple purposes in seeing Mr Hafner. Some purposes, perhaps, did not require an aide-memoire. Nevertheless, in circumstances where there could be a number of reasons to speak with Mr Hafner some precision is required before one can conclude that a note as a whole or any particular part of it was made for the dominant purpose of obtaining legal advice from Mr Hafner. These paragraphs, [9] in the first affidavit and [5] and [6] in the second, do not allow one so to conclude …

(Emphasis in the original)

104    Counsel also referred to Barnes v CoT at [18] and to State of Victoria v Tabcorp Holdings Limited [2013] VSCA 180 at [41]-[44] as cases in which claims for privilege had failed in circumstances in which it had been possible to discern objectively more than one likely purpose for the creation of the document and the claimant for privilege had failed to provide evidence directed to the relative importance of each in the preparation of the document.

105    Mr Moscati submitted that an “obvious, probable purpose for the creation” of the Interview Notes and the Evidence Outlines had been to enable JPMA to provide the ACCC with:

(a)    a “detailed description” of the conduct regarding the ANZ Share Placement said to constitute “cartel conduct”;

(b)    sufficient information for the ACCC to determine whether JPMA satisfied the criteria for conditional immunity; and

(c)    specific details of the type of evidence which JPMA could provide to the ACCC regarding the ANZ Share Placement.

106    Like ANZ, Mr Moscati submitted that Mr Kyle had not addressed these purposes and had instead made no more than bare assertions that the dominant purpose of the Internal Review had been the provision of confidential legal advice to JPMA.

Consideration of the claims to privilege

107    Having regard to the force of the critique made by Allsop J in Kennedy v Wallace at [168] of the use of the passive voice in a claim for privilege, it is unfortunate that Mr Kyle used this manner of expression in [27] of his first affidavit. Moreover, contrary to JPMA’s submissions, Mr Kyle in [2] and [28] did not disclose “the thought processes” behind the decisions made by JPMA in commencing the Internal Review: cf Barnes v CoT at [18].

108    It is also pertinent that Mr Kyle does not depose positively that he had no other purpose in undertaking the Internal Review when it would have been natural (and easy) for him to have done so. Nor does he address the extent, if any, to which the preparation and pursuit of the application for immunity played a part in his decision making at the time. Again, it would have been natural and easy for him to have done so.

109    The absence of evidence of this kind is underlined when it is remembered that JPMA had the opportunity under the programming orders made by Wigney J on 27 January 2021 to file both evidence and submissions in reply. This meant that it could have adduced evidence directed to the shortcomings in its evidence identified in the submissions of ANZ and Mr Moscati. Although JPMA filed a reply affidavit from Mr Kyle, that affidavit did not even attempt to address the identified shortcomings. This allows an inference that it could not do so. In saying this, I accept that it is unsurprising that Mr Kyle did not depose in his reply affidavit to any matter bearing on the third of ANZ’s “repository” submissions. That is because ANZ’s written outline had not included a submission to that effect.

110    It may also be pertinent that, when articulating JPMA’s claim for privilege in [46] of his first affidavit, Mr Kyle deposed to the “dominant purpose” for which the Type B, C and D documents had been prepared, but did not use that term in relation to the Type A documents. Instead, he repeated in substance the manner of expression he had used in [27] of his affidavit.

111    However, there are a number of countervailing matters. The first is that Mr Kyle used the definite article “the” in stating JPMorgan’s purpose in [27] of his affidavit, namely, “the purpose” of its lawyers providing confidential legal advice. I did not understand either ANZ or Mr Moscati to submit that, because of the manner of expression adopted by Mr Kyle in [27] of his affidavit, his statement of the purpose should not be accepted. To the contrary, their submissions seemed to accept that the purpose stated by Mr Kyle had been a purpose of the Internal Review. I note in this respect that ANZ and Mr Moscati did not object to the reception into evidence of [27] of Mr Kyle’s affidavit. Nor did they request that he attend for cross-examination. Further, ANZ and Mr Moscati did not submit that JPMA had determined, before commencing on the Internal Review or at an early stage while it was being undertaken, to make an application for conditional immunity. The evidence suggests to the contrary, as JPMA undertook the Internal Review before making the proffer and it made the proffer only after the interviews had been completed.

112    It was implicit in the submissions of ANZ and Mr Moscati that they accepted that the purpose to which Mr Kyle deposed in [27] was a privileged purpose.

113    A second countervailing matter is that Mr Kyle used the first person in [33] when stating his purpose in making notes during the interviews with the employees. He also used the first person in [35] when stating his purpose in instructing to Gilbert + Tobin to “memoralize” the accounts of the interviewees. In each case he deposed expressly that his purpose had been to have a record which APAC Litigation and Gilbert + Tobin could use to provide legal advice to JPMorgan in respect of the matters stated in [27] of his affidavit. Putting to one side for the moment the submission of ANZ and Mr Moscati about multiple purposes, the manner of expression used in [33] and [35] does not suffer from the shortcomings stated by Allsop J in Kennedy v Wallace. There would be an artificiality in concluding that there had been a sufficient statement of purpose for the preparation of the documents but not of the purpose or purposes for the interviews in which the information recorded in the Interview Notes and Evidence Outlines was obtained.

114    A third countervailing circumstance is that a number of matters, viewed objectively, make very plausible Mr Kyle’s assertion that JPMorgan did engage in the Internal Review for the composite purpose he identified in [27] of his affidavit. These include:

(a)    JPMorgan had been alerted to the possibility that employees of JPMA had engaged in cartel conduct. It is understandable that it regarded such a possibility as a very serious matter about which it should obtain legal advice;

(b)    JPMorgan did in fact put in place a process by which it could obtain legal advice, including from its in-house lawyers and from Gilbert + Tobin;

(c)    the Internal Review was in fact initiated and overseen by the in-house lawyers in APAC Litigation;

(d)    lawyers from Gilbert + Tobin and APAC Litigation did undertake the interviews with the employees;

(e)    it was Gilbert + Tobin who communicated with the ACCC to obtain the marker; and

(f)    it was Gilbert + Tobin who communicated with the ACCC during the period that the marker was in place and while the interviews were being conducted and the evidence notes prepared.

115    As JPMA submitted, the objective circumstances were such that it may readily be inferred that JPMA would not have acted in the Internal Review or in the communications with the ACCC without obtaining legal advice. Deutsche Bank, at the least, acknowledged this inference when it submitted that the advice sought by JPMorgan from APAC Litigation and to Gilbert + Tobin “would necessarily have canvassed the eligibility requirements and conditions of immunity” and that “undoubtedly, JPMorgan and G+T would have closely considered the information and evidence that JPMorgan would be expected to provide to the ACCC in its initial application (including as a result of its internal investigation)”.

116    All these matters are very consistent with JPMorgan having conducted the Internal Review for the purposes identified by Mr Kyle in [27] of his affidavit.

117    A fourth (although lesser) consideration is that Gilbert + Tobin did assert in a letter to the ACCC on 31 January 2018 that the notes of the interviews with the JPMA employees made by Gilbert + Tobin lawyers had been made “for the dominant purpose” of providing legal advice to JPMA.

118    The submissions of ANZ and Mr Moscati seemed to proceed on a narrow view of the purpose of JPMorgan in undertaking the Internal Review stated by Mr Kyle in [27] of his affidavit. In particular, their submissions seemed to assume a distinction between advice as to an available course of action (the ability to apply to the ACCC for immunity), on the one hand, and advice in the making of the application, on the other. This was particularly evident in Mr Moscati’s submission concerning the “obvious probable purpose” for the creation of the Interview Notes and Evidence Outlines.

119    In my view, acceptance of the principle that legal professional privilege be confined within strict limits does not require that [27] of Mr Kyle’s affidavit be construed narrowly. It indicated that JPMorgan sought advice as to its risk, as to the management of the identified risk, and as to the making of an application for immunity to the ACCC. There is nothing in [27] which suggests that JPMorgan was seeking advice only as to the courses of action available, so that once having been informed of the possibility that an application for immunity could be made, its seeking of advice ceased. Instead, it is natural to understand [27(b)] as encompassing advice both as to the availability of immunity and as to the course of action to be followed in seeking that immunity. The latter encompassed the extent of the matters to be disclosed to the ACCC in order to obtain the marker and in order to satisfy the requirements for conditional immunity as well as advice as to whether JPMA could satisfy those requirements. When these matters are understood, each of the second matters to which ANZ and Mr Moscati referred should not be regarded as realistic alternative purposes – they are instead encompassed by the purpose to which Mr Kyle deposed.

120    The submissions of ANZ and Mr Moscati also seemed to overlook that it is commonplace for documents brought into existence for a particular (privileged) purpose to be used later for some other purpose without it being suggested that the second purpose accounted equally for their original creation. In litigation, persons disclose factual matters to their lawyers for the purpose of obtaining advice as to whether they have a reasonable cause of action or a reasonable defence, as the case may be. It is natural, for example, for lawyers to use the notes of their instructions later when preparing a formal pleading. That later use does not detract from the purpose for which the notes were made even if the lawyer had in mind at the time of their creation that the notes could also be used for that purpose.

121    In my view, it would be inappropriate to conclude that JPMorgan had a dual purpose in undertaking the Internal Review, that is to obtain advice concerning the possibility that conduct of its employees had been unlawful cartel conduct and about the steps it could take to mitigate the legal risk thereby occasioned, on the one hand, and, separately and distinctly, advice as to the implementation of such steps, on the other. That is to say, even if one may identify a purpose of JPMorgan in undertaking the Internal Review as being “to facilitate an application by JPMorgan for immunity” or to “facilitate[e] the perfection of the first-in marker … by enabling JPMorgan to provide the ACCC with a compliant proffer” (as ANZ submitted) or “to enable [JPMA] to provide the ACCC with the information required of it under the Immunity Policy” (as Mr Moscati submitted), I would regard such a purpose as encompassed by the purpose to which Mr Kyle deposed in [27] of his affidavit. In particular, I accept JPMA’s submission that it would be artificial, in the circumstances of this case, to distinguish between advice in relation to the availability of immunity and the requirements for such immunity, on the one hand, and the process of applying for that immunity, on the other.

122    For these reasons, I reject the submissions advanced by ANZ and Mr Moscati in their written submissions.

123    In my opinion, ANZ’s third repository “submission”, that is, the submission that a purpose of the preparation of the Interview Notes and Evidence Outlines had been “to provide a stable factual basis to enable JPM to comply with their conditions of immunity if granted” had the air of a theoretic construct. It is true, as counsel for ANZ submitted, that JPMA can be taken to have had knowledge at the time that the Interview Notes and Evidence Outlines were prepared that a condition of a grant of immunity would be that it would continue to provide “full, frank and truthful disclosure” and that it would cooperate “fully and expeditiously”. However, one would not readily infer that JPMA would have understood that such an obligation required it not only to preserve such material as it had, but to bring material into existence which it could, if called upon in the future, produce to the ACCC. I note that there is nothing in either the ACCC Policy or in the CDPP Policy which required JPMA to bring documents into existence or even to record in an enduring way the accounts given by its own employees of the conduct in question. The Court should more readily infer that JPMA’s purpose was more immediate, in particular, to obtain legal advice in relation to its position, as to the means by which it may manage that position, and as to the pursuit of those means.

124    In my view, the link between that knowledge and the third repository purpose for which ANZ contended is tenuous. One would infer instead that JPMA appreciated that the conditions of disclosure and cooperation required it to make available, so far as it was in a position to do so, its employees for interview by the ACCC or the CDPP.

125    It follows that I do not consider that there is a “gap” in the matters on which JPMA carried the onus. Like the CDPP, I consider that JPMA has established that legal professional privilege attaches to each of the documents in the Objection Schedule. In particular, I accept that the purpose to which My Kyle deposed in [27], [33] and [35] of his affidavit was, in each case, the dominant purpose for the respective communications.

Waiver of privilege

126    The CDPP and the accuseds submitted that JPMA has waived privilege over the documents in relation to all Type A claims and of those parts of the documents for which Type D claims are made which disclose factual matters.

127    The CDPP and the accuseds accepted that they had the onus on the issue of waiver.

Waiver of privilege – principles

128    Conduct by the privilege holder which is inconsistent with maintenance of the confidentiality of the communications gives rise to waiver imputed by the law, irrespective of the intention of the privilege holder. In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, Gleeson CJ, Gaudron, Gummow and Callinan JJ said:

[28]    At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege … 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 …

(Emphasis added and citations omitted)

129    In Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275, the plurality (Gleeson CJ, Gummow, Heydon and Kiefel JJ) affirmed inconsistency of conduct with the maintenance of the confidentiality as the determinant of imputed waiver, saying:

[45]    Waiver of the kind presently in question is sometimes described as implied waiver, and sometimes as waiver "imputed by operation of law". It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances …

[46]    The conduct of the Attorney-General in issuing the press release and including in it certain information about the joint legal advice is to be considered in context, which includes the nature of the matter in respect of which the advice was received, the evident purpose of the Attorney-General in making the disclosure that was made, and the legal and practical consequences of limited rather than complete disclosure.

(Citation omitted)

130    Waiver of privilege was considered again by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 in which it said:

[30]    … In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.

[31]    In Craine v Colonial Mutual Fire Insurance Co Ltd, it was explained that "'[w]aiver' is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions ... It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has 'approbated' so as to prevent him from 'reprobating'". In Mann v Carnell, it was said that it is considerations of fairness which inform the court's view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though "not some overriding principle of fairness operating at large."

(Emphasis added and citations omitted)

131    Before Mann v Carnell, issues about imputed waiver had been determined by an assessment of whether it was unfair or misleading to allow the privilege holder to refer to or use material while maintaining the claim of privilege: Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481 (Gibbs CJ), at 487-8 (Mason and Brennan JJ), at 492-3 (Deane J) and at 497-8 (Dawson J); Goldberg v Ng at 96-8 (Deane, Dawson and Gaudron JJ).

132    While at one time it was thought that the decision in Mann v Carnell had not effected a practical change in the law (see for example, Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 at [44]), it is now accepted that Mann v Carnell “brought an important clarification and sharpness to the analysis which is not reasonably reconciled with earlier decisions such as Attorney-General (NT) v Maurice”: see Bailey v Director General, Department of Land and Water Conservation [2009] NSWCA 100, (2009) 74 NSWLR 333 at [4] per Allsop P and see also British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107, (2011) 195 FCR 123 at [42]. Considerations of fairness still have a role in the assessment of implied waiver but, as Mann v Carnell, Osland and Expense Reduction indicate, these are not considerations operating at large. Instead, such notions are relevant to the extent that they inform any inconsistency between the conduct of the privilege holder, on the one hand, and the maintenance of the confidentiality, on the other. See also Bailey at [4] and Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [29].

133    As legal professional privilege is an important substantive common law right, implied waiver is not lightly imposed: Attorney-General (NT) v Maurice at 487 (Mason and Brennan JJ); Arnold Bloch Leibler (A firm) v Slater & Gordon Limited [2020] FCA 1496 at [66]. Thus, in Expense Reduction, the High Court said that courts will find an imputed waiver of privilege when the action of the privilege holder is “plainly inconsistent” with the maintenance of the confidentiality which the privilege is intended to protect.

134    JPMA referred to authorities indicating that disclosure of part of a privileged document does not invariably result in the loss of privilege over the balance of the document. This is particularly so if the disclosure is for a limited and specific purpose and on terms that the third party will treat the information disclosed as confidential: Goldberg v Ng at 120, cited in Mann v Carnell at [30].

135    Counsel for JPMA referred to Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 in relation to waiver by disclosure of part of a document which deals with severable subject matters. In that case, counsel at trial had read two paragraphs from a document to the Court, unaware that it was incomplete and without any intention of waiving the claim for privilege in the balance. The plaintiff’s solicitors had earlier discovered only the same two paragraphs. The Court of Appeal upheld the finding that the privilege in the whole of the document had been waived because the document dealt with a single subject matter which was incapable of being divided into two separate and distinct memoranda, with the consequence that privilege could not be waived as to part and retained with respect to the balance.

136    Counsel also referred to Bailey in which Tobias JA regarded Great Atlantic Insurance Co as standing for the proposition that, when the whole of a document is a privileged communication, the party entitled to the privilege cannot waive it as to part of the communication, but claim it with respect to the remainder if to do so would result in unfairness. His Honour had continued at [132]:

… Either privilege is claimed with respect to the whole or waived as to the whole. The only exception to this would be where the communication dealt with two entirely different subject matters in respect of which privilege was claimed for the one that was relevant to the issues at hand and waived for the other which was not.

137    However, while Allsop P and Hodgson JA agreed with the reasons of Tobias JA, they did so subject to the additional comments of Allsop P at [3]. Having distinguished Great Atlantic Insurance Co on its facts, Allsop P said that he would leave for a future occasion consideration of the true limits of any principle established “if such extends beyond waiver through dealing or acts inconsistent with the maintenance of the confidentiality of the communication and thus the privilege”, citing Mann v Carnell.

138    Nevertheless, one matter which may inform the assessment of inconsistency is the extent to which the undisclosed portions of a partly disclosed document deal with separate and distinct subject matters. As to this, Stewart J said in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 6) [2019] FCA 337; (2019) 369 ALR 267 at [25]:

… One consideration in the case of partial disclosure is whether the disclosed and the undisclosed parts of the communication cover the same or different subject matters. That is because if they cover the same subject matter, disclosure of only part of the communication may lead to the meaning or import of the disclosed part being distorted or inaccurately perceived. Thus in the case of partial disclosure, the assessment of whether or not there is relevant inconsistency is likely to include a consideration of whether or not the disclosed and undisclosed parts cover different subject matter.

(Emphasis added)

139    The creation of an “inaccurate perception” to which his Honour referred in this passage was one of matters to which Mason and Brennan JJ had referred in Attorney-General (NT) v Maurice as indicating that partial disclosure may be unfair so as to give rise to an imputed waiver of the whole.

140    Inconsistency of conduct of the requisite kind is often found when the privilege holder makes assertions or representations about the nature, character or effect of the contents of the privileged documents. Such assertions or representations may be considered inconsistent with maintenance of the confidentiality of the documents, especially when the privilege holder wishes to rely, or have others rely, on the accuracy of the assertion or representation.

141    Having regard to the submissions of some of the accuseds, it is appropriate to note that it is not enough for a waiver that the content of the privileged communications may be relevant to an issue in the proceedings: Council of New South Wales Bar Association v Archer [2008] NSWCA 164, (2008) 72 NSWLR 236 (NSW Bar Association v Archer) at [48]; Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305, (2016) 339 ALR 635 at [57] or relevant to, or useful in, a defence to criminal proceedings: Carter v Northmore Hale Davy & Leake.

142    Both the CDPP and some of the accused referred to authorities bearing upon a waiver of material “associated with” the communications or documents voluntarily disclosed by a privilege holder. Their submissions did not particularise the material in this case which should be characterised as “associated” but I understood it to encompass both the Interview Notes and the redacted portions of the Evidence Outlines. There seemed to be a suggestion that, provided the associated material was sufficiently related to the partly disclosed material, it too should be the subject of imputed waiver. Reliance was placed for this purpose on AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 in which Young J commenced his review of the authorities concerning the waiver of associated material by saying, at [164]:

… The test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter …

(Citation omitted)

As is apparent, this statement of the test did not contain any reference to inconsistency of conduct of the kind referred to in Mann v Carnell.

143    However, as the reasons of O’Callaghan J in Zantran Pty Ltd v Crown Resorts Limited (No 2) [2020] FCA 1024 at [42]-[43] demonstrate, it is evident that the decision of Young J in AWB Ltd v Cole in relation to “associated” material also involved an application of the principle stated in Mann v Carnell. His Honour said that he did not understand Young J to have suggested that “there is some species of waiver involving so-called “associated material” that involves an expansion of the principles in Mann v Carnell”, at [42] and rejected a submission that there was some such separate species, at [45]. Middleton J referred to Zantran with apparent approval in Hall v Arnold Bloch Leibler (a firm) [2020] FCA 1495 at [21]. I consider it appropriate to proceed on the same basis.

144    Counsel for Deutsche Bank emphasised [46] in Osland, set out earlier in these reasons. His submissions were made on the basis that it provided a form of template of the matters to be considered whenever waiver is considered in the context of partially disclosed material. I doubt that that is so, as the High Court was then referring to particular aspects of the context which were pertinent in the circumstances then before it. But even if that be so, [46] in Osland cannot reasonably be understood as indicating that the legal and practical consequences include considerations of fairness at large. Such an understanding would be inconsistent with the statements of principle in Mann v Carnell and Expense Reduction.

145    In summary, the Court is to determine the claims of imputed waiver by an assessment of the inconsistency, if any, between JPMA’s conduct and the maintenance of the confidentiality of its documents. That assessment is to be made having regard to all the circumstances. In relation to the partial disclosures of the contents of the documents in late 2020, those circumstances will include the purpose for which the disclosures were made and the legal and practical consequences of the disclosures, but not consideration of fairness at large: Osland at [46]; Bailey at [4].

The asserted acts of waiver

146    While the CDPP and the accuseds asserted that there had been both express and imputed waiver by JPMA, there was no unanimity of position among them as to the acts of JPMA said to constitute the waiver. The various positions (and the principal parties propounding them) were:

(a)    an express waiver of the parts of the Evidence Outlines disclosed in the meetings with the CDPP on 2 October and 13 November 2020 (CDPP, ANZ, Deutsche Bank, Citigroup and Mr Moscati);

(b)    an implied waiver of associated material resulting from the express waiver in the meetings on 2 October and 13 November 2020 (CDPP, ANZ, Deutsche Bank and Citigroup);

(c)    an implied waiver by interviewing the employees in September, October and November 2015 and making a record of what they said (CDPP);

(d)    an implied waiver by commencing and continuing the immunity application process in 2015 and 2016 (CDPP and Deutsche Bank);

(e)    an implied waiver by applying for conditional civil and criminal immunity (CDPP);

(f)    an implied waiver by making the initial proffer to the ACCC on 9 November 2015 (ANZ, Deutsche Bank and Mr Moscati); and

(g)    an implied waiver by seeking and accepting the benefit of conditional, civil and criminal immunity from the ACCC and the CDPP (ANZ, Deutsche Bank and Mr Moscati).

147    As is apparent, there is some overlap between these positions and they need not all be considered separately. In substance, and putting to one side the CDPP submission concerning JPMA’s actions in interviewing its own employees, the CDPP and the accuseds pointed to acts of two distinct kinds as giving rise to the inconsistency of conduct by JPMA founding a waiver: inconsistency in seeking and obtaining the conditional immunities and inconsistency in making the partial disclosures in late 2020.

148    It is convenient to commence with a consideration of the effect of the partial disclosures by JPMA in the meetings on 2 October and 13 November 2020.

The 2020 oral proffers

149    JPMA accepted that it had expressly waived privilege in the parts of the Evidence Outlines disclosed in the meetings with the CDPP on 2 October and 13 November 2020. It maintained, however, that there had been no express waiver in relation to the remaining portions of the documents and disputed that its partial disclosure had given rise to any imputed waiver. In particular, JPMA submitted that the unredacted portions of the 13 documents can be read and understood without resort to further material within the same documents; that the remaining portions contained “severable” statements of fact; that it is not a party to the prosecution and, accordingly, had not been seeking to obtain any forensic or other advantage in the prosecution; that it had not sought to deploy the disclosed material in such a way so as to raise “misgivings” about the failure to produce the undisclosed material; that in the consideration of fairness, account should be taken of the circumstance that it had been “effectively compelled” to make the partial disclosures; and that, having provided “sufficient information” to provide a full account of the evidence expected to be given by its employees “on the topics central to the proceedings”, it would be unfair if it was required to disclose more. JPMA also made a “chilling effect” submission, namely, that if potential immunity applicants understood that they would be at risk of their “legal advice” being disclosed to the world, they may hesitate to obtain such advice or to approach regulatory agencies seeking immunity.

150    Counsel for JPMA emphasised that a disclosure of privileged material to a third party for a limited purpose does not necessarily amount to a waiver of the privilege, citing Goldberg v Ng at [120] and Mann v Carnell at [30], to which reference was made earlier. He submitted, in effect, that the disclosure to the CDPP had been of this kind.

151    JPMA did not advance any submission to the effect that it could be found to have waived privilege over some documents but not others, or over additional portions of some documents and not others. That is to say, JPMA did not submit that some form of differentiation between the documents was required. Nor did JPMA advance a submission to the effect that, even if it was found to have waived privilege over the Evidence Outlines, it should not be found to have waived privilege over the Interview Notes from which they were drawn. With the exception of two of the partly disclosed Evidence Outlines to which counsel for the CDPP referred by way of illustration, the Court did not receive submissions directed to the content of specific documents. More generally, there was no submission to the effect that the Court need distinguish between particular documents in its application of the principles concerning waiver.

Consideration of waiver by the 2020 oral proffers

152    I note again that the determination of whether the partial disclosures by JPMA to the CDPP in late 2020 were inconsistent with its maintenance of confidentiality in the Evidence Outlines is to be made having regard to the context and circumstances in which that disclosure occurred and in light of considerations of fairness arising from that context or those circumstances (Osland at [45]). The relevant considerations of fairness are those bearing upon JPMA seeking to maintain the confidentiality of its documents having regard to its antecedent conduct.

153    The matters of context and circumstance which may be pertinent to the assessment of the requisite inconsistency include the purpose for which the disclosure was made (Osland at [46]); the extent to which the subject matter of the undisclosed material is separate and distinct from that which was disclosed (Bailey at [132]; FKP v Spirits International at [25]); the extent to which the incomplete disclosure may result in “distortion or inaccurate perception” (FKP v Spirits International at [25]); and the legal and practical consequences of limited rather than complete disclosure (Osland at [46]).

154    In the present case, a number of different matters bear upon the assessment of inconsistency.

155    First, JPMA made a conscious and voluntary decision to disclose portions of its confidential documents, and it did so in the pursuit (or perhaps defence) of its commercial and strategic interests. It is true that JPMA was forced to make a decision about maintaining the confidentiality of the whole of the documents by the CDPP indicating that she required the disclosure as a condition of the continued grant of conditional immunity to JPMA. That indication by the CDPP put JPMA in the position in which it had two interests which conflicted: its interest in maintaining the confidentiality of its documents and its interest in not jeopardising the grant of conditional immunity. It chose to give preference to the latter. I accept that it would have preferred not to make the partial disclosures but do not accept that it was “effectively compelled” to do so. It could have chosen to maintain the privilege and risk that the immunity would be withdrawn with the consequences which might then ensue. Faced with conflicting alternatives, it evidently considered that its commercial and strategic interests should be advanced by making disclosure of some of its confidential information.

156    There was no suggestion that the CDPP had agreed that the form of partial disclosure which JPMA indicated it would make, and did in fact make, would be sufficient for her purposes. In fact, on 30 September 2020, Ms Cass-Gottlieb had acknowledged the possibility that the CDPP may decide to take further steps. The extent and manner of the disclosure was left to the decision of JPMA.

157    Secondly, when JPMA made the partial disclosures to the CDPP, it did not do so on the condition, or in the expectation, that the CDPP would keep the disclosed material to herself. JPMA knew that the CDPP took the view that further disclosure of the material was required as part of the discharge of her prosecutor’s duty of disclosure in the criminal proceedings and, indeed, that that was part of the CDPP’s purpose in seeking the material. JPMA also knew that several of the accuseds sought the disclosure of the “first accounts” because of their relevance to their defence of the criminal charges. In particular, JPMA knew that the accuseds wished, amongst other things, to have the initial accounts of the JPMA employees of the events in 2015 with a view to identifying any exculpatory matters and any prior inconsistent statements. In short, JPMA knew that the partially disclosed material would be deployed in a forensic context and that, in that context, issues about the completeness of the disclosed communications may well arise.

158    Thirdly, when JPMA made the partial disclosures, it knew that the CDPP’s position was that it required the whole of the “factual material” in the Evidence Outlines. The ACCC had informed Gilbert + Tobin on 11 September 2020 that, not only did the CDPP require the Evidence Outlines, it required an undertaking from JPMA that the Evidence Outlines did not contain any material omissions of matters contained in the Interview Notes. The CDPP counsel and staff had told the Gilbert + Tobin lawyers that the CDPP sought the factual material.

159    Fourthly, when JPMA made the partial disclosures, it made assertions, expressed or implied, about the extent and character of that which it was disclosing and about that which it was not disclosing. Mr Kyle instructed Gilbert + Tobin to disclose to the CDPP the evidence derived from the Interview Notes and Evidence Outlines which JPMA expected its employees to give at trial in respect of “core conduct” in the ANZ Share Placement. The evidence did not disclose whether Gilbert + Tobin lawyers used the term “core conduct” in their discussions with the CDPP. So far as I can tell, that term does not appear in the notes made by the CDPP lawyers of the meetings on 25, 29 and 30 September 2020. Instead, the notes record the Gilbert + Tobin lawyers and the CDPP counsel and staff referring to disclosure of “the factual material” and of the “relevant parts” of the employees’ first accounts. However, I think it reasonable to infer, and I do infer, that the Gilbert + Tobin lawyers complied with Mr Kyle’s instruction and so disclosed those portions of the Evidence Outlines thought to be “core”.

160    Mr Kyle did not elaborate the term “core conduct”. However, it implies conduct regarded as centrally relevant to a given topic. It also implies that not all the “factual material” was disclosed: only that containing the conduct thought to be core.

161    If the Gilbert + Tobin lawyers told the CDPP that they were disclosing the content of the Evidence Outlines concerning the core conduct, they were also representing implicitly that what they were not disclosing was regarded as non-core. If the Gilbert + Tobin lawyers told the CDPP that what they were disclosing was the “relevant factual material”, they were representing implicitly that what was not disclosed was not “relevant factual material”.

162    The identification of conduct as “core” or of material as “relevant” must have involved someone making evaluations of the “factual material” contained in the Evidence Outlines. Mr Kyle’s affidavit does not indicate who it was who made those evaluations nor the criteria which were applied. No one has suggested that the APAC Litigation and Gilbert + Tobin lawyers acted with anything other than good faith in the identification of the conduct which was disclosed as “core” or “relevant”, and I accept that they did so. However, the binary classification of conduct as “core” or “non-core” does not mean that there was necessarily a clear line of distinction between the two. The scope for reasonable minds to reach different views about what might be regarded as core and as non-core seems obvious. Moreover, the conduct regarded as “non-core” may still be unrelated to conduct regarded as “core”, only less closely connected to the central matter. The same may be said in respect of the categorisation of material as relevant or non-relevant.

163    These considerations suggest two consequences of present relevance. The first is the potential for the perception of what was disclosed as the extent of the conduct which was core to be inaccurate because other undisclosed conduct was also core or, while not itself being core, was so closely connected with the disclosed core conduct, as to be necessary for a complete understanding of the disclosed conduct. Expressed in terms of “factual material”, it suggests the potential for the disclosed factual material to have been incomplete and therefore to give rise to a compromised understanding (inaccurate perception) of it.

164    The second is the inconsistency of JPMA in maintaining its assertion of confidentiality over the undisclosed material while at the same time making express and implied assertions about the nature and character of that which it was disclosing and not disclosing, that is, that it was core or non-core or “relevant” or “irrelevant” factual material, as the case may be. Put more shortly, JPMA’s express and implied assertions about the character of the information it was disclosing and not disclosing were inconsistent with its maintenance of confidentiality over the undisclosed balance of the documents. It also involved a relevant form of unfairness as JPMA thereby precluded the CDPP from making her own assessment of those matters.

165    In the meeting of the CDPP on 30 September 2020, Ms Cass-Gottlieb had said that the manner in which the Gilbert + Tobin lawyers would make the partial disclosure would “address the area of consistency of evidence”, presumably consistency as perceived by JPMA between the content of the employees’ first accounts, on the one hand, and the content of their later accounts, on the other. The evidence of Mr Kyle did not indicate whether “consistency of evidence” had informed the identification of what was core and non-core conduct, or of what was relevant and non-relevant. Ordinary experience indicates that the consistency or otherwise of two or more accounts of a single event may, amongst other things, depend on the level of abstraction or specificity with which each account is given. The greater the detail, the greater prospect of one account being different from another, if only because of differences in the detail included or omitted. At the very least, JPMA’s express or implied assertions that that which was disclosed was sufficient to allow issues of consistency between accounts to be assessed raises an issue of fairness if the recipients are unable to assess for themselves the extent of the consistencies or inconsistencies. For the reasons given in relation to the disclosure of conduct said to be “core” or “relevant”, the very making of the assertion that what was disclosed would be sufficient to enable consistency between accounts to be assessed was inconsistent with the maintenance of the confidentiality of the documents.

166    The fifth matter is pertinent even if JPMA did not make express or implied assertions of the kind to which I have just referred. It was JPMA and not the CDPP who chose the topics which provided the framework for the partial disclosures on 2 October and 13 November. The very size of the redactions in the partially disclosed statements makes it evident that the selection of the relevant topics involved some discrimination by JPMA and its lawyers. The evidence did not disclose the criteria used in the selection of the topics but I infer that these were topics considered by JPMA to be relevant to the prosecution or perhaps relevant to the matters on which issues as to the consistency of its employees’ accounts may arise. Again, and accepting as I do that JPMA and the Gilbert + Tobin lawyers acted with good faith, the potential for reasonable minds to differ about these topics is evident. In particular, the potential for incomplete disclosure, occurring innocently, is apparent. As counsel for the CDPP and some of the accuseds submitted, as at the time JPMA made the disclosures, the CDPP had not yet filed the indictment in this Court. This meant that JPMA could not have known with any certitude the topics which would be pertinent in the criminal proceedings, let alone the evidence which may be pertinent to each topic. Yet it seems to have asserted, at least impliedly, that the matters it was disclosing were the extent of the evidence (derived from the Interview Notes and Evidence Outlines) which its employees could give on matters at the heart of the criminal proceedings. The potential in these circumstances for its disclosure to have been incomplete is obvious. This adds to the impression of conduct by JPMA which was inconsistent with the maintenance of the confidentiality in the undisclosed portions of the Evidence Outlines in making an express or implied assertion about the extent of its disclosure while seeking to preclude the CDPP making her own assessment of that matter. It is also suggestive of relevant unfairness.

167    Sixthly, Mr Kyle does not depose that the undisclosed matters concerned distinct or unrelated subject matters. It would have been easy for him to have done so had that been the case. Given the purpose of the Internal Review to which Mr Kyle deposed in [27] of his affidavit, it would seem surprising that the undisclosed matters were wholly unrelated to those which were disclosed. These matters support the Court drawing a Jones v Dunkel inference that the subject matters of the Evidence Outlines and Interview Notes were not separate and distinct.

168    Seventhly, as counsel for the CDPP and ANZ submitted, the partially redacted documents produced by JPMA in answer to the subpoenas (with the portions disclosed at the meetings on 2 October and 13 November 2020 unredacted) illustrate that a reader would have an “inaccurate perception” or “incomplete understanding” of the matters disclosed. By way of illustration, the draft Evidence Outline of one employee prepared following his interview on 7 September 2015 has the first 21 paragraphs redacted, yet para [22] commences “During the call”. There is no identification of “the call”, when it occurred or of the participants in it. The same is true of the draft outline of evidence of another employee prepared following his interview on 24 September 2015. The first 16 paragraphs of the Evidence Outline are redacted but para [17] commences “The call started off with …”.

169    A review more generally of the partially redacted documents produced by JPMA in answer to the subpoenas reveals several other like examples. Their effect is that, even when regard is had only to the Type A redactions, it is not possible to understand completely the parts of the Evidence Outlines which have been disclosed.

170    It is possible that, because of the manner in which the Gilbert + Tobin lawyers announced the topics in the meetings on 2 October and 13 November 2020, these features were not then apparent. That is to say, they may be only a consequence of the way in which redactions have been made. However, even accepting that this is so, the fact is that the redactions have the effect in several instances that it is not possible for a reader to know the occasion (date and time) about which the employee is speaking or the other participants in a conversation accepted by JPMA as being relevant or core.

171    Counsel for JPMA referred to British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 3 All ER 816 in which it was held that documents prepared for a privileged purpose in civil proceedings did not cease to be privileged by their disclosure to the prosecution, and their further disclosure by the prosecution to the accused, in criminal proceedings (that accused being the defendant to the civil proceedings). Neill LJ (in the judgment of the Court of Appeal), said that, at 822:

[T]he action of the plaintiff in making documents available for the purpose of the criminal trial did not constitute a waiver of the privilege to which it was entitled in the present civil proceedings. Its action … was in accordance with its duty to assist in the conduct of the criminal proceedings, and could not properly be construed as an express or implied waiver of its rights in its own civil litigation. Indeed, it would in my view be contrary to public policy if the plaintiff’s action in making the documents available in the criminal proceedings had the effect of automatically removing the cloak of privilege which would otherwise be available to them in the civil litigation for which the cloak was designed.

172    JPMA’s submissions seemed to suggest that the same reasoning be applied in this case, to support a conclusion of no inconsistency.

173    Although, unlike the present case, British Coal involved the complete disclosure of documents to the defence, I do not regard the decision as being of assistance presently. As counsel for ANZ noted, the decision proceeded on an understanding that legal professional privilege is a rule of evidence, whereas in Australia it is well-established that the privilege is a substantive common law rule and an important common law right: Daniels at [9], [11]. Moreover, it seems that the decision in British Coal may have been based on concepts of fairness rather than inconsistency. That detracts from its persuasiveness as authority and it is far from self-evident that, since Mann v Carnell, it would be decided the same way in Australia. I would prefer to regard the decision in British Coal as one illustration in its time of the proposition to which the High Court referred in Mann v Carnell at [30]-[32], namely, that disclosure of a privileged communication to a third party for a limited and specific purpose may not necessarily amount to an imputed waiver.

174    In the present case, I do not think that it may be said that JPMA made the partial disclosures for a limited specific purpose and, for the reasons given earlier, it certainly did not do so on the basis that the CDPP (or for that matter, the accuseds) would keep confidential the disclosed material.

175    The above matters, considered in combination, point to the appropriateness of a conclusion that JPMA’s partial disclosures of the documents in late 2020 to the CDPP were inconsistent with the maintenance of confidentiality of the remainder and that (putting the Types B, C and D claims to one side) JPMA should be imputed with a waiver of the confidentiality of the whole of the documents. However, before expressing a concluded view, I will, as several of the parties (including JPMA) submitted was appropriate, inspect the documents.

176    Before making that inspection, it is appropriate to identify matters which were the subject of some submissions which I have not regarded as bearing upon the imputed waiver. In the main, these are matters bearing upon general notions of fairness in a criminal trial.

177    Several of the submissions emphasised the condition of the CDPP’s grant of conditional immunity to the effect that JPMA continue to provide “full, frank and truthful disclosure and co-operation to the ACCC (including by withholding nothing of relevance) throughout the course of … any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct”. The submissions, as I understood them, were to the effect that there was no relevant unfairness to JPMA in making a form of disclosure which it had voluntarily undertaken to make, as a condition of its obtaining of immunity.

178    I have not relied on this submission, for two reasons: first, because it seeks to invoke a more general conception of unfairness than that which is relevant to the assessment of the requisite inconsistency and, secondly, because it would involve the Court in construing the metes and bounds of the conditions upon which the CDPP granted the immunity. That is an issue which could come before the Court in a substantive way. For example, the CDPP could have insisted on full disclosure of the materials which she now seeks to inspect. Had she done so and JPMA disputed its obligation to do so under the terms of the conditional immunity, the issue may then, by one or more means, have come before the Court for determination. A number of matters would then require consideration. In the view I take, these matters are best left until they truly require determination and the Court will have the benefit of full submissions.

179    Counsel for Deutsche Bank emphasised features of the statement taking process adopted by the ACCC, features of the manner by which the CDPP had discharged her duty of disclosure in the criminal proceedings, JPMA’s purpose in making the limited disclosure (which he submitted was to assist the CDPP in complying with her duty of disclosure), the “unquestionable relevance” of the Interview Notes and Evidence Outlines to the criminal proceedings and the prejudice to the accuseds if they are denied access to the material. Counsel for Mr Moscati made submissions to similar effect. I have not relied on these matters, taking the view that they were not directed to the more confined notion of fairness which is pertinent for present purposes. Instead, using the expression from Mann v Carnell, they were directed to notions of fairness at large in the context of the anticipated criminal trial. It is neither necessary nor appropriate in this case for the Court to adjudicate upon the matters required by the CDPP’s duty of disclosure nor upon the manner in which that duty has been discharged to date.

180    In the inspection of the documents, I have paid closer regard to the Evidence Outlines (including their earlier drafts) than to the Interview Notes. The latter are not easy to read, being in hand writing, using abbreviations, and reflecting to an extent “in-house” understandings of elements of JPMA’s business shared by the interviewer and the interviewee.

181    Without descending into detail, my inspection confirms the appropriateness of the preliminary conclusion expressed above. My firm impression is that, in the assessment of the “core conduct”, a reasonably confined view of conduct of that character was taken with the consequence that matters of background, chronology and statements concerning the employees’ states of mind which informed their conduct were excluded. I consider that, without disclosure of these matters, the perceptions of the disclosed material are likely to be incomplete and inaccurate.

182    My review of the documents also suggests that, with limited exceptions (and putting to one side the Type B, C and D categories of privilege), the subject matters addressed in the Evidence Outlines are not separate and distinct from the disclosed matters. The Jones v Dunkel inference to which I referred earlier can be drawn even more confidently. Regard to the unredacted versions of the documents suggests that the redactions in the 13 documents containing partial redactions give them a certain lack of coherence and, in some instances, a disjointedness.

183    The inspection also confirms that the JPMA submission that the unredacted portions of the 13 documents can be read and understood without resort to further material within the same document and that the redacted versions contain “severable” statements of fact should not be accepted. It also indicates that the selection of the “core” aspects of the employees’ conduct is not sufficient to provide a full account of the evidence which those employees are able to give concerning the alleged cartel conduct.

184    Having made the inspection, I am confirmed in my view, based on the evidence, that JPMA’s conduct in making the partial disclosures on 2 October and 13 November 2020 was inconsistent. It is inconsistent for JPMA to seek to maintain the confidentiality of the balance of the documents when, in the pursuit (or defence) of its own strategic and commercial interests, it has disclosed portions of them and has in addition made express and implied representations about the nature and character of that which it was disclosing. Moreover, if the CDPP and the accuseds do not have access to the balance of the Evidence Outlines (again putting to one side the Type B, C and D categories of claimed privilege), they will not have an accurate and complete understanding of that which has been disclosed. In short, there is inconsistency in JPMA’s assertions about the extent of that which it has disclosed, on the one hand, and the maintenance of its confidentiality, on the other, and unfairness to those to whom the documents have been disclosed.

185    Finally, I do not accept JMPA’s “chilling effect” submission. It overlooked that neither the CDPP nor the accuseds are seeking access to legal advice provided to JPMA. Further, a “chilling effect” submission to the effect made by JPMA could be made in almost any case in which there are disputes about waiver arising from partial disclosure of a document and yet that has not been regarded as a factor bearing upon the inconsistency of conduct and maintenance of confidentiality which is at the heart of imputed waiver.

186    This conclusion makes it unnecessary, strictly speaking, to consider the other bases for imputed waiver for which the CDPP and the accuseds contended. However, in case the matter goes further, I will express my views briefly.

The conduct in interviewing the employees

187    As noted earlier, the CDPP submitted that waiver should be imputed to JPMA by reason of its conduct in interviewing the relevant witnesses and recording what they said in handwritten notes and in outlines of evidence. Counsel did not develop a submission concerning this act of waiver.

188    This submission of the CDPP should not be accepted. First, to do so would be incongruous because it would require the Court to find that the conduct bringing the privilege into existence is the same conduct by which that privilege was waived. Secondly, as JPMA submitted, conducting interviews and recording what is said by witnesses is an ordinary incident of the provision of legal advice. What the privilege holder later does with that advice is a matter for it. In this case, the advice could have been to the effect that JPMA did not need to seek immunity or that doing so was not appropriate for other reasons. It could scarcely be contended that in that circumstances, the interviewing of the witness and the preparation of the Interview Notes and Evidence Outlines constituted a waiver of the privilege.

JPMA’s conduct in seeking and obtaining the conditional immunities

189    It is convenient to consider together the effect of JPMA’s conduct in commencing and continuing the immunity application process and in applying for conditional civil and criminal immunity.

190    The CDPP and the accuseds were not able to point to any act of disclosure of the privileged material by JPMA in the course of it seeking and obtaining the grants of conditional immunity. They did not contest Mr Kyle’s evidence that the Interview Notes and Evidence Outlines were not disclosed to, or discussed with, the ACCC during the 2015 oral proffer, that in that proffer JPMA had provided a high level overview of the events which had occurred during the ANZ Share Placement and the possible legal implications of those events, and that the 2015 oral proffer had not involved any particular facts or information being attributed to an account of events provided by one of the employees during the interviews.

191    As noted earlier, the ACCC has also claimed legal professional privilege with respect to the contents of the 2015 oral proffer but Mr Bezzi’s evidence in the committal hearing confirmed that the proffer had been at a “high level”. In these circumstances, the submission of ANZ and other accuseds that JPMA had “engaged in conduct inconsistent with the maintenance of the confidentiality which the privilege was designed to protect by disclosing sufficient information to be granted the immunity cannot be accepted.

192    In my view, there was no inconsistency in JPMA causing an investigation to be undertaken for the purpose of the provision of legal advice, obtaining legal advice on the basis of the results of that investigation and then, on the basis of that advice, seeking the grants of immunity. That is particularly so given that neither the ACCC Policy nor the CDPP Policy required the disclosure of privileged material as a condition of the grant of the immunities. On the contrary, the ACCC respected the existence of the privilege, as the evidence of Mr Bezzi indicated that the ACCC appreciated that doing so facilitated the reporting to it of cartel conduct.

193    JPMA’s position in this respect is analogous with that described by Hodgson JA in Council of the NSW Bar Association v Archer at [48]:

… It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question ...

194    The imposition of the condition by the ACCC and the CDPP, and JPMA’s acceptance of the condition, that it provide “full, frank and truthful disclosure and cooperation … including by withholding nothing of relevance” was not of itself inconsistent with the maintenance of the confidentiality of the communications. JPMA’s acceptance of the immunities and their conditions served only to bring into existence a conditional state of affairs. JPMA thereby put itself in a position in which it could be required to make the choice which it did ultimately in late 2020, namely, either waive the privilege or run the risk of losing the immunities granted to it. No inconsistency of conduct occurred merely because it had decided to put itself into a position in which it may have to make that choice.

195    For these brief reasons, had it been necessary to do so, I would not have upheld the submissions of the CDPP and the accuseds that there was an imputed waiver by the various acts of JPMA in seeking and accepting the grants of conditional immunity.

The Type D privilege

196    As earlier noted, JPMA claims privilege of the Type D category of communications on the basis that they comprised only internal notes or comments made by Gilbert + Tobin or in-house JPMorgan lawyers on the Interview Notes and Evidence Outlines for the dominant purpose of those lawyers providing advice and that those notes and comments have not otherwise been disclosed.

197    My inspection of the documents confirmed that Type D is limited to notes and comments of the type described by JPMA. The CDPP and the accuseds did not seek inspection of the notes and comments. Accordingly, the application for leave to inspect those parts of the documents for which JPMA claims the Type D privilege is refused.

Conclusion

198    For the reasons stated above, on JPMA’s objection to inspection by the CDPP and the accuseds of the documents produced pursuant to the subpoenas, my ruling is that the parties may inspect those documents and parts of documents for which JPMA makes a claim of privilege of Type A but leave is not granted for them to inspect those documents or portions of documents for which claims of privilege of the Types B, C and D are made.

Costs

199    In addition to seeking an order upholding its claims to privilege, JPMA sought an order for costs. Counsel for JPMA referred to r 8.13(1) of the Federal Court (Criminal Proceedings) Rules 2016 (Cth) which provides:

The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.

200    Counsel submitted that the term “any reasonable loss or expense incurred in complying with the subpoena” extended to the costs of the argument about JPMA’s privilege.

201    Counsel for the CDPP submitted that the Court lacks the power to make a costs order in criminal proceedings. He referred to s 23HE of the Federal Court of Australia Act 1976 (Cth) which provides:

Nothing in this Act gives the Court power to award costs in indictable primary proceedings.

202    The submissions which the Court received concerning this issue were relatively brief and were made without reference to the authorities bearing on r 8.13(1), its State and Territory counterparts and its predecessor.

203    As JPMA has, in substance, been unsuccessful in its opposition to those parts of the subpoena documents which were in issue at the objection hearing, the question may be moot in the present case. I will, however, give the parties the opportunity to make further submissions concerning costs.

Associate:

Dated:    14 May 2021

SCHEDULE OF PARTIES