Federal Court of Australia

TerraCom Limited v Australian Securities and Investments Commission [2022] FCA 745

ORDERS

THE COURT ORDERS THAT:

1.    The appellant file and serve a redacted version of the “Project Rex Report” prepared by PricewaterhouseCoopers Consulting Australia Pty Ltd and dated 16 December 2019 by 4pm on 5 July 2022.

2.    The respondent’s amended interlocutory application filed on 22 June 2022 be dismissed.

3.    The respondent pay the appellant’s costs of the application.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    This is an interlocutory application by the Australian Securities and Investments Commission (ASIC), who is the respondent to an appeal brought by TerraCom Ltd (TerraCom) against an order of a judge of this court dismissing TerraCom’s application for a declaration that legal professional privilege attaches to a single document called “Project Rex Report” prepared by PricewaterhouseCoopers Consulting Australia Pty Ltd (PwC). See TerraCom Ltd v Australian Securities and Investments Commission [2022] FCA 208 (J).

2    TerraCom’s appeal is to be heard by a Full Court, comprised of Jackson and Halley JJ and myself, on 24 August 2022.

3    By an amended interlocutory application filed on 22 June 2022, ASIC seeks these orders:

1.    An order that the Appellant provide an unredacted copy of the document entitled “Project Rex Report” prepared by PricewaterhouseCoopers Consulting (Australia) Pty Ltd and dated 16 December 2019 (PwC Report) to Senior Counsel and Junior Counsel for the Respondent subject to:

a.    Senior Counsel for the Respondent providing a confidentiality undertaking in the form included as ‘Annexure A’ to this application; and

b.    Junior Counsel for the Respondent providing a confidentiality undertaking in the form included as ‘Annexure B’ to this application.

2.    In the alternative, an order that the Honourable Court appoint an independent third party or an amicus curiae so that the PwC Report can be provided to that person on a confidential basis for the purposes of providing assistance to the Honourable Court on the hearing of the appeal.

4    At the hearing of the application yesterday, Dr SB McNicol AM QC, who appeared for ASIC, proffered a revised version of the undertakings annexed to the amended interlocutory application, which added a new paragraph 6. I attach to these reasons marked “A” a copy of the undertakings proposed to be signed separately by both Dr McNicol and her junior.

5    The relevant history of the matter is as follows, and is derived primarily from the reasons of the primary judge.

6    The proceeding arose out of an investigation by ASIC of suspected contraventions of the Corporations Act 2001 (Cth) by TerraCom and its current and former officers and employees in relation to the testing, certification and sale of coal from late 2016 to early 2020.

7    As part of that investigation, ASIC executed a warrant at TerraCom’s Blair Athol mine site offices in March 2021. In May 2021, ASIC also issued a notice to TerraCom to produce books and documents.

8    The warrant caused the “Project Rex Report”, which I shall call the PwC report, to be seized by ASIC and thereby come into its possession. The report was also caught by the notice issued by ASIC.

9    TerraCom then claimed legal professional privilege over the PwC report.

10    ASIC disputed that claim. Pending resolution of the dispute, ASIC agreed not to inspect the copy of the report seized under the warrant and TerraCom did not produce the report in answer to the notice.

11    TerraCom then issued a proceeding seeking a declaration that legal professional privilege attached to the PwC report such that TerraCom was not obliged to produce it to ASIC and ASIC was not entitled to inspect it.

12    The proceeding was heard by the primary judge on 4 March 2022. The issues that called for resolution were:

(1)    Was the PwC report prepared for the dominant purpose of TerraCom’s lawyers providing TerraCom with legal advice or legal services?

(2)    If it was, and in that sense legal professional privilege attached to it, was privilege over the whole or any part of the PwC report waived by TerraCom?

(3)    If privilege over only part of the report was waived, does that have the result that privilege over the whole report is lost?

13    The primary judge answered those questions:

(1)    yes;

(2)    privilege was waived over part of the PwC report;

(3)    privilege over the whole report was lost.

Relevant facts

14    TerraCom is an ASX-listed resource explorer with a large portfolio of operating assets in Australia and South Africa.

15    In August 2019, TerraCom terminated the employment of a commercial general manager, a Mr Williams, in circumstances where he made allegations against the company and its officers and employees about the falsification of certificates of analysis of coal exported by TerraCom.

16    TerraCom instructed Ashurst Australia to act for it and provide legal advice on the issues arising in relation to the allegations of misconduct made by Mr Williams.

17    By letter of engagement dated 29 August 2019, PwC was appointed by TerraCom, relevantly in the following terms:

We are writing to confirm that:

•    The Board of TerraCom Limited (TerraCom) has engaged Ashurst Australia (Ashurst) to provide TerraCom with legal advice on matters arising in relation to a former employee, including allegations of misconduct that the former employee has made against TerraCom and certain executives thereof.

•    Ashurst has been instructed to carry out an investigation into these allegations, for the purpose of providing legal advice to TerraCom.

•    Ashurst will engage PwC on behalf of TerraCom to provide forensic support and services in connection with the investigation. We acknowledge and agree that we are being instructed by Ashurst on behalf of TerraCom, and that Ashurst’s advice is being given for TerraCom’s use and benefit.

•    The purpose of PwC’s involvement and report is to enable Ashurst to provide the legal advice referred to above. …

18    On 5 December 2019, Mr Williams commenced a proceeding under the Fair Work Act 2009 (Cth), naming six individual respondents, each of whom was an officer of TerraCom. He repeated allegations that he had made in early September in a general protections application in the Fair Work Commission concerning TerraCom’s alleged falsification of coal analyses.

19    The PwC report was provided on and is dated 16 December 2019.

20    The primary judge explained what relevantly happened next, as follows (J at [23]ff):

On 24 February 2020, ALS Ltd, a global testing, inspection and certification business, published an ASX announcement and media release which stated that it had appointed external advisors to conduct an independent forensic investigation into the processes applied to the certification of coal samples by staff employed in its coal superintending and certification unit. It stated that preliminary investigations had identified that a number of certificates of analysis issued by two laboratories within the coal superintending unit in Australia were amended before issue without proper justification.

Also on 24 February 2020, the Australian Financial Review (AFR) reported on the announcement by ALS and on Mr Williams’s allegations in his proceedings against TerraCom, and linked the two, i.e., at least implying that ALS was used by TerraCom for analysis of its coal for export. On the same day, TerraCom published a formal ASX announcement apparently in response to the AFR article. The announcement recorded that the AFR had reported that a former commercial general manager at TerraCom had alleged in court proceedings that TerraCom was involved in a scheme relating to “the fake analysis of coal samples”. The announcement also stated the following:

… Mr Williams falsely alleged that TerraCom altered reports about the quality of its coal exports.

TerraCom took Mr Williams’ allegations extremely seriously and had the conduct of its employees independently investigated.

…

On 12 March 2020, TerraCom published an open letter to shareholders in the AFR. The letter addressed two topics, one of which was “Legal Dispute with Justin Williams”. The letter refers to the dispute with Mr Williams concerning the termination of his employment, and states the following:

As previously stated, TerraCom took allegations that its CEO and CFO had been involved in a scheme relating to the fake analysis of coal samples seriously and an independent forensic investigation was conducted and found no evidence of wrongdoing.

… for Mr Williams to suggest TerraCom was involved in an international conspiracy to undertake false testing is ludicrous.

21    On 3 April 2020 TerraCom made a second ASX announcement in these terms:

As previously stated, TerraCom took the allegations by Mr Williams that its CEO and CFO had been involved in a scheme relating to the fake analysis of coal samples seriously and an independent forensic investigation was conducted.

That investigation found that the allegations against them were unfounded and neither had done anything wrong.

22    Having found that the PwC report was privileged, and that TerraCom had, by its letter to shareholders and its second ASX announcement, waived legal professional privilege over the PwC report “at least to the extent of the subject-matter of allegations that its CEO and CFO had been involved in a scheme relating to the fake analysis of coal samples” (J at [66]), the primary judge turned to question 3.

23    The primary judge found that he had the power to examine the PwC report for the purpose of answering that question (citing Rinehart v Rinehart [2016] NSWCA 58 at [20] and [40] (Beazley P, Leeming and Simpson JJA)) and that he should do so because “it is not practical to determine the extent to which the subject-matter of the disclosure by TerraCom is distinct from other subject-matter in the report, or the extent to which those parts of the report covering the one subject-matter can be properly and fairly understood if separated out from the rest of the report” (J at [79]).

24    The primary judge’s reasons with respect to question 3 were as follows (J at [80]–[87]):

Mindful of maintaining TerraCom’s rights of appeal by not disclosing too much about the content of the PwC report, I can describe the report as follows.

The executive summary of the report identifies several “concerns” raised by Mr Williams. These are identified and numbered 1(a) and (b), 2(a) and (b), and 3(a), (b) and (c). That numbering suggests that there are three principal topics each of which can be further divided into two or three sub-topics.

Concern 3 covers a topic of allegations, of which 3(b) is about the CEO, Mr McCarthy. TerraCom submits that it is only the sections of the report which deal with concern 3(b) in respect of which it should be concluded that privilege was waived by the limited disclosures in the letter to shareholders and the ASX announcements. However, the overall subject-matter of concern 3 is dealt with in an integrated way such that it is not practical, and it would result in the disclosed parts being misleading or incomplete, to separate out only those sections or sub-sections of the report that deal exclusively with concern 3(b). For example, section 3.4 of the report deals with concern 3. Subsections 3.4.1, 3.4.2 and 3.4.3 deal with general matters about concern 3 before then going on to the narrower matters within concern 3 and making key findings with respect to each of the sub-topics identified as concerns 3(a), (b) and (c).

In those circumstances, the relatively narrow disclosures by TerraCom necessarily lead to at least the waiver of all the sections of the report dealing with concern 3, namely 1.2.3, 1.2.4 and 3.4.

However, in my view even to excise those sections of the report will leave them incomplete and liable to be misunderstood because of the way in which the report is structured and the manner in which the different concerns interrelate. For example, section 1 of the report contains the executive summary. Subsection 1.1 deals with the background, which explains why the report came to be commissioned and what the different concerns are. This introductory part of the report is important for a proper understanding of the treatment of concern 3. Section 2 of the report deals with the scope of and approach to PwC’s task. The section relates as much to concern 3 as it does to any of the other concerns. Concern 3 cannot be fully comprehended without risk of misunderstanding if it is divorced from sections 1 and 2.

Section 3 of the report outlines the report’s findings. Subsection 3.1 details the processes and contextual information that is relevant to all three of the principal topics, including concern 3. Subsections 3.2 and 3.3 deal with concerns 1 and 2 and could, on one view, be excised. However, in my view such an approach runs the danger of leaving the report in a disjointed and incomplete condition such as to prejudice a proper understanding of the treatment of concern 3.

The report has four appendices each of which is relevant to concern 3.

In the circumstances, the partial disclosure of the contents of the report by the disclosure of the subject-matter of concern 3(b) leads ineluctably in this case to waiver of legal professional privilege in respect of the whole report.

25    The primary judge accordingly dismissed TerraCom’s proceeding.

TerraCom’s appeal

26    TerraCom’s notice of appeal contains one ground:

The learned Primary judge erred in concluding that privilege had been waived by the appellant in respect of the whole of a report dated 16 December 2019 from PricewaterhouseCoopers by virtue of the appellant’s disclosure of that firm’s finding in respect of a particular matter [J 82 to 87]. The primary judge ought to have found that the disclosure did not bring about a waiver other than in respect of those sections of the report which addressed that matter.

27    TerraCom seeks an order that the order made by the primary judge dismissing the proceeding be set aside and a declaration that “the legal professional privilege held by the appellant in respect of the report has not been waived by the appellant, otherwise than in respect of those sections of the report which addressed the allegation identified in the report as concern 3(b)”.

28    ASIC subsequently agreed not to access the PwC report pending the hearing and determination of TerraCom’s appeal.

29    I should also add that at the hearing yesterday, senior counsel for TerraCom, Mr MR Elliott SC, agreed to a direction being made that his client serve a redacted copy of the PwC report on ASIC.

30    Mr Elliott also undertook that his instructing solicitors would provide to each member of the Full Court, on a confidential basis, an un-redacted copy of the PwC report. I will not make a specific direction about that. Mr Elliott’s instructors should liaise with the chambers of each of the three judges who will sit on the appeal, and ensure that an un-redacted confidential copy of the PwC report is provided either via email or in hard copy to the chambers of each judge, no later than seven days before the hearing of the appeal.

The parties’ submissions

31    ASIC submitted that the court should make the orders it seeks for two main reasons:

(1)    it is in the interests of fairness that ASIC should, through its counsel, be heard and have an opportunity to make submissions as to the content of the PwC report; and

(2)    the court would be assisted to a greater degree if there was a contradictor in respect of any submissions made by TerraCom as to the content of the PwC report.

32    ASIC submitted that if TerraCom made “submissions in respect of which no response can be proffered [it] would … effectively reduce ASIC to becoming an uninformed bystander in respect of a significant aspect (if not the entirety) of the appeal, contrary to the fundamental tenets of the adversarial system upon which the Court operates” and that “the presence and appearance of ASIC’s counsel at the hearing of the appeal would become futile as submissions by the appellant would be effectively made ex parte”.

33    ASIC also submitted, in the alternative, that the Full Court “would be assisted to a greater degree if there were a contradictor to submissions which may be made to the Court concerning the content of the PwC Report”. Another suggestion was the appointment of amici curiae.

34    ASIC also submitted that provision of access would have no material effect upon TerraCom’s claim of privilege because:

(1)    ASIC seeks access for counsel only subject to the provision of strict undertakings;

(2)    even if confidentiality were not maintained in the PwC report, the provision of access in accordance with an order of the court would not involve a voluntary act by TerraCom inconsistent with its maintenance of privilege; and

(3)    ASIC undertook that it would not contend that the provision of the PwC report to its counsel constitutes an act by TerraCom that is inconsistent with its maintenance of privilege.

35    I was also taken by Dr McNicol to some cases involving public interest immunity where a contradictor was appointed. She referred in particular to this passage from the judgment of Leeming JA in Re Timor Sea Oil & Gas Australia Pty Ltd (in liq) [2020] NSWSC 1832; (2020) 389 ALR 545 at 548–9 [19]:

Thirdly, the application by the Commonwealth to proceed in closed Court, and its application to read paragraphs 30-34 of Ms McGregor’s affidavit whilst preserving their confidentiality, infringe basic notions of procedural fairness. Put simply, the Commonwealth seeks to obtain a court order in its interests without the plaintiff seeing let alone testing or being heard as to the evidence on which the Commonwealth relies. This is contrary to a defining characteristic of a court. The application of procedural fairness and adherence, as a general rule, to the open court principles have been said to be a defining or essential characteristic of a court … There are, as mentioned in argument, instances where such a course may be appropriate, a point recognised by the qualification given by French CJ and Kiefel J to adherence “as a general rule” to the open court principles. In Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [68], French CJ indicated that public interest considerations might qualify those defining or essential characteristics of courts. But it may be expected that a court will be astute to determine whether some less unfair procedure may be adopted whilst still preserving the confidentiality underlying the claim of privilege.

36    Dr McNicol also relied on this passage from the judgment of Allsop P, as the Chief Justice then was, and with whom Hodgson JA and Sackville AJA agreed, in State of New South Wales v Public Transport Ticketing Corporation (No 3) (2011) 81 NSWLR 394 at 398 [19]:

There are a number of circumstances in which the courts have been faced with a handicap or a difficulty in efficiently or justly resolving an aspect of a dispute where one party cannot see the material upon, or in respect of which, the court must adjudicate. Fairness may be compromised because the nature of the right or privilege asserted or claimed is one that excludes the other party from an examination of relevant material, but to disclose it to the other party for the purpose of resolving the claim of right would destroy that very right (if legitimately claimed). Further, fairness may be compromised by the court examining the material without a contradictor. This is, in part, alleviated by the recognition that the hearing without the substantive participation of the other party will have features of an ex parte application, thereby requiring appropriate disclosure from the party claiming the right. Nevertheless, it is easily seen how the other party may feel less than fully satisfied with the decision of the court, the foundation of which it cannot know or understand. Further, efficiency, to a degree, is impeded. A court, without a contradictor, must seek to understand the litigious context of the claim of right and assess it with only one side assisting. Here, the time of three judges on appeal was taken examining material without the assistance of a contradictor.

37    In his written submissions, Mr Elliott said this in relation to the conduct of his client’s case on appeal:

At the hearing of the appeal, the appellant will ask the Court to read the [PwC report] and accept a contention that [it] dealt with a number of different issues, that the disclosure was only in respect of one of them, and that privilege was not lost in respect of [it] save for the part dealing with the issue the subject of the disclosure. The primary judge and ASIC accepted that the appellant’s approach in this regard was correct at the level of principle, but his Honour ultimately concluded that there was not a sufficient degree of separation between the parts of the [PwC report] the subject of the disclosure and the balance.

38    Mr Elliott made the following points:

(1)    ASIC has not pointed to any authority for the proposition that the court may order a party who claims privilege in a proceeding (here, this appeal proceeding) in respect of a document to disclose the document to another party in advance of the determination of the claim in the proceeding;

(2)    ASIC is seeking a final order which involves a final and irreversible outcome under which TerraCom must hand over to nominated third parties a document which it says is privileged, which requires a determination of the substantive privilege dispute;

(3)    making the order sought would compel TerraCom to act contrary to the very substantive right it claims in the proceeding, and in doing so, would confer upon ASIC a potential advantage that it would never enjoy if the privilege were later found to be available;

(4)    the order sought would undermine the essential public policy underpinning privilege, which is to give citizens the comfort and confidence that they can speak with advisers openly;

(5)    the court is “uniquely empowered to determine the validity of privilege claims and holding the depth of expertise and experience to do so, is the entity who may look at the relevant document and determine the disputed privilege issues for itself”, which “process exists to, inter alia, address the fact that the counter-party to the privilege dispute and its representatives cannot themselves access the document …”;

(6)    there was no suggestion by ASIC below that the primary judge was incapable of reading the PwC report and forming a view as to whether the requisite degree of separation existed between issues described in it; and

(7)    the fact that ASIC may want its counsel to look at the PwC report in advance of the hearing, and that if that occurred ASIC may be able to participate in the hearing more than it otherwise would, are not valid reasons for making the orders sought – those facts exist in every privilege contest.

39    In his oral submissions, Mr Elliott added:

[T]here would be nothing to stop us – and we wouldn’t oppose a direction from your Honour that we provide in advance of the hearing [of the appeal] the – as it were, a full form of the document and what we say ought be the redacted form of the document. And if we did that, we wouldn’t, quite frankly, anticipate saying anything to … your Honours about what might be called the severability topic because – principally, your Honour, because I can’t really do it without risking waiving the privilege I’m trying to protect, but secondly, I think, to be frank, your Honour, those kinds of exercises in persuasion aren’t particularly useful when one just has the document. And your Honours will be, with respect, perfectly able to form your own views about severability or otherwise …

…

I do make that submission, in part, to highlight the fact that there would not be such a disparity in the position between the parties, in terms of submissions. What would ultimately be happening is the court would be forming a view about the issue in circumstances where one party did not have the benefit of the document in question, and in that regard the submission we make in writing is that that is not anything other than the usual feature of a case where there are privilege issues in contest, and my learned friend’s submissions about unfairness do nothing more than recognise the way in which the principles about right to be heard are altered in a case where there is a privilege dispute in issue.

Consideration

40    I decline to make the orders sought by ASIC.

41    It seems to me, with great respect, that in circumstances where senior counsel for the appellant in his oral submissions has nailed his colours to the mast about how he intends to run the appeal – that is, by inviting the Court to read the PwC report for ourselves, and determine for ourselves without the benefit of any substantive submission whether the primary judge’s conclusion was correct – no purpose is to be served in this particular case by taking the unusual step of providing the document to counsel on a confidential basis on the terms set out in the attached undertakings, or by appointing an amicus, a contradictor, or any other independent third party.

42    In circumstances where it is intended that TerraCom’s appeal be conducted in the fashion described by its counsel, it is difficult to imagine how any issue of procedural unfairness of the type submitted by ASIC could conceivably arise.

43    Leaving aside the differences that may arise between the testing of evidence in public interest immunity cases on the one hand, and claims for legal professional privilege on the other, the public interest immunity cases to which I was taken make clear that the question of whether an independent person should be appointed to make submissions in relation to documents to which one party was not privy depends on a variety of different factors. The headnote to the decision of the New South Wales Court of Appeal in State of New South Wales v Public Transport Ticketing Corporation (No 3) (2011) 81 NSWLR 394 correctly summarises the Court’s reasons in that regard as follows:

Where the State made a claim to public interest immunity over various documents, the appointment of a special counsel was justified by reason that: it would reduce the time to be taken by the court in dealing with a claim over a large number of documents; it would enhance the fairness and apparent fairness of the procedure to the party concerned; it was not put that there was any risk to the public interest in taking this course; the costs were to be borne by the party concerned in the first instance; and given that the court had already dealt with the application of principle to some of the documents, this would assist counsel in applying the principles to the remaining documents and be likely to reduce arguments before the court.

44    This appeal concerns a single document. As the UK Court of Appeal said in R (AHK) v Secretary of State for the Home Department [2009] 1 WLR 2049 at 2063 [37], in a passage cited by Allsop P in State of New South Wales v Public Transport Ticketing Corporation (No 3) (2011) 81 NSWLR 394 at 401–2 [29]:

… The appointment of a special advocate is … likely to be just where there are significant issues and/or a significant number of documents. The position may be different where there are very few documents and the judge can readily resolve the issues simply by reading them …

45    I should also mention that ASIC intends at the hearing of the appeal to rely on a notice of contention, as follows:

1.    The Court should affirm the order made by the Federal Court on the ground that the PwC Report does not attract, and is not the subject of, legal professional privilege:

1.1    The evidence upon which the Appellant relied in support of its claim of privilege fails to establish that the dominant purpose of the PwC Report was to enable the Appellant’s solicitors to provide it with legal advice; rather, the evidence establishes that there was more than one purpose for which the PwC Report was prepared with no one purpose predominating over the other purposes.

1.2    The primary judge erred in finding that the PwC Report was the subject of legal professional privilege because, in making that finding:

(a)    the primary judge adopted the stated subjective purpose for which the PwC Report was said to have been prepared without examining the relevant objective circumstances; and

(b)    the primary judge erroneously failed to consider or otherwise to find that, on the evidence, there was more than one purpose for which the PwC Report was prepared, and it could not be established that any one purpose predominated over the other purposes.

46    Absent the notice of contention, it may have been worth giving thought to hearing TerraCom’s appeal on the papers, but given that the anterior question of whether the primary judge was correct to find that the PwC report attracted legal professional privilege will be in issue, the appeal must proceed in the ordinary way, and neither party suggested otherwise.

47    I should also mention two other submissions made on behalf of ASIC, lest it be thought that I had overlooked them. The first was that any perceived difficulties could be avoided by hearing and determining ASIC’s notice of contention before TerraCom’s appeal and, if it were resolved in ASIC’s favour, no issue of waived privilege could arise. It seems to me, however, and quite apart from anything else, that a bifurcated hearing is not consistent with modern case management objectives. Secondly, as to the question of the cost of the exercise of appointing an amicus or contradictor, ASIC offered to cover those costs. In the view I take of the matter, however, the question of who might bear the expense of the proposed exercise is not relevant.

48    For those reasons, ASIC’s amended interlocutory application will be dismissed, with costs.

Associate:

Dated:    28 June 2022

A

Confidentiality undertaking

I, Suzanne McNicol, counsel for the respondent give this undertaking to the Full Court of the Federal Court of Australia (the Court) and to the appellant, to enable me to inspect the document entitled “Project Rex Report” prepared by PricewaterhouseCoopers Consulting (Australia) and dated 16 December 2019 (PwC Report) for the purpose of preparing for, and appearing in, the appeal in proceeding no NSD248/2022 (the Appeal)

(1)    I will keep the information in the PwC Report confidential.

(2)    I will not disclose any information in the PwC Report to any unauthorised person.

(3)    I will not copy the PwC Report or transcribe any information in the PwC Report on any other document (except, subject to paragraph 4, the written outline of submissions to be filed in the Appeal).

(4)    I will not quote from the PwC Report in the respondent’s written outline of submissions.

(5)    I will use the PwC Report and the information in the PwC Report solely for the purposes of the Appeal in this Court.

(6)    That if the appellant succeeds in the Appeal, subject to any application for leave to appeal and appeal, I will not participate or act for the respondent, ASIC, in any matter, or proceedings arising from, the Investigation by ASIC into suspected contraventions by the appellant, Terracom and its current and former officers and employees of the Corporations Act 2001 (Cth) (as defined at paragraph 6 of ASIC’s Submissions dated 17 December 2021 and filed in proceeding NSD 796/2021).

(7)    I acknowledge that the appellant will provide me with a single unredacted copy of the PwC Report. I will keep the copy of the PwC Report provided to me by the appellant in a locked drawer or safe under my control at all times when I am not actually using the PwC Report for the purposes of the Appeal in this Court, such purposes including inspection by Roshan Chaile, junior counsel for the respondent.

(8)    When the PwC Report is in my possession, I shall ensure that no unauthorised person has access to it.

(9)    I will return the copy of the PwC Report provided to me to the solicitors for the appellant promptly (within 24 hours) after the conclusion of the hearing of the Appeal by the Court.

(10)    I acknowledge that the disclosure of the PwC Report by the appellant to me subject to this undertaking is in no way inconsistent with the preservation of legal professional privilege in the PwC Report.

(11)    The undertaking operates from the time I give this undertaking until I am released from the undertaking.

(12)    I will be released from the undertaking upon the earliest of the following events:

(a)    I am released from the undertaking in writing by the appellant;

(b)    I am released from the undertaking by order of the Court;

(c)    I am released from the undertaking by the PwC Report being released unconditionally and in full to the respondent by the appellant, either voluntarily or pursuant to an order of the Court.

(13)    Should the appellant release unconditionally, or the Court order the release of, some of the PwC Report (or parts of the PwC Report), I am released from the undertaking only to the extent that it covers the PwC Report (or parts, as the case may be).

(14)    For the purposes of the undertaking, “unauthorised person” means the respondent, the respondent’s solicitors and any person other than:

(a)    the appellant and any other officer of the appellant who is authorised by the appellant to have access to the PwC Report;

(b)    any person who, pursuant to the orders of the Court, has given an undertaking substantially identical to this undertaking to the Court and the appellant in this Appeal;

(c)    a member of the Court as constituted in this Appeal or a member of the staff of the Court in the course of the performance of his or her duties as a member of that staff.

Confidentiality undertaking

I, Roshan Chaile, counsel for the respondent give this undertaking to the Full Court of the Federal Court of Australia (the Court) and to the appellant, to enable me to inspect the document entitled “Project Rex Report” prepared by PricewaterhouseCoopers Consulting (Australia) and dated 16 December 2019 (PwC Report) for the purpose of preparing for, and appearing in, the appeal in proceeding no NSD248/2022 (the Appeal)

(1)    I will keep the information in the PwC Report confidential.

(2)    I will not disclose any information in the PwC Report to any unauthorised person.

(3)    I will not copy the PwC Report or transcribe any information in the PwC Report on any other document (except, subject to paragraph 4, the written outline of submissions to be filed in the Appeal).

(4)    I will not quote from the PwC Report in the respondent’s written outline of submissions.

(5)    I will use the PwC Report and the information in the PwC Report solely for the purposes of the Appeal in this Court.

(6)    That if the appellant succeeds in the Appeal, subject to any application for leave to appeal and appeal, I will not participate or act for the respondent, ASIC, in any matter, or proceedings arising from, the Investigation by ASIC into suspected contraventions by the appellant, Terracom and its current and former officers and employees of the Corporations Act 2001 (Cth) (as defined at paragraph 6 of ASIC’s Submissions dated 17 December 2021 and filed in proceeding NSD 796/2021).

(7)    I acknowledge that the appellant will provide me with a single unredacted copy of the PwC Report. I will keep the copy of the PwC Report provided to me by the appellant in a locked drawer or safe under my control at all times when I am not actually using the PwC Report for the purposes of the Appeal in this Court, such purposes including inspection by Suzanne McNicol, senior counsel for the respondent.

(8)    When the PwC Report is in my possession, I shall ensure that no unauthorised person has access to it.

(9)    I will return the copy of the PwC Report provided to me to the solicitors for the appellant promptly (within 24 hours) after the conclusion of the hearing of the Appeal by the Court.

(10)    I acknowledge that the disclosure of the PwC Report by the appellant to me subject to this undertaking is in no way inconsistent with the preservation of legal professional privilege in the PwC Report.

(11)    The undertaking operates from the time I give this undertaking until I am released from the undertaking.

(12)    I will be released from the undertaking upon the earliest of the following events:

(a)    am released from the undertaking in writing by the appellant;

(b)    I am released from the undertaking by order of the Court;

(c)    I am released from the undertaking by the PwC Report being released unconditionally and in full to the respondent by the appellant, either voluntarily or pursuant to an order of the Court.

(13)    Should the appellant release unconditionally, or the Court order the release of, some of the PwC Report (or parts of the PwC Report), I am released from the undertaking only to the extent that it covers the PwC Report (or parts, as the case may be).

(14)    For the purposes of the undertaking, “unauthorised person” means the respondent, the respondent’s solicitors and any person other than:

(a)    the appellant and any other officer of the appellant who is authorised by the appellant to have access to the PwC Report;

(b)    any person who, pursuant to the orders of the Court, has given an undertaking substantially identical to this undertaking to the Court and the appellant in this Appeal;

(c)    a member of the Court as constituted in this Appeal or a member of the staff of the Court in the course of the performance of his or her duties as a member of that staff.