Federal Court of Australia

Australian Securities and Investments Commission v ASX Limited [2025] FCA 552

ORDERS

THE COURT ORDERS THAT:

1.    The defendant’s amended interlocutory application filed on 7 March 2025 is dismissed.

2.    The defendant is to pay the plaintiff’s costs of the amended interlocutory application.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    On 13 August 2024 the plaintiff, the Australian Securities and Investments Commission (ASIC), commenced this proceeding by the filing of an originating process and concise statement. The defendant is ASX Limited. ASIC seeks declarations pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) that the ASX in trade or commerce engaged in conduct in relation to financial services contrary to s 12DA and s 12DB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and orders pursuant to s 12GBB and s 12GLA(2)(d) or s 12GLB of the ASIC Act for respectively payment of a pecuniary penalty and publication of the contraventions alleged in this proceeding, if found, and the circumstances leading up to them.

2    The proceeding arises out of statements made by ASX on 10 February 2022 about the status of its project for the replacement of its clearing and settlement services system known as the Clearing House Electronic Subregister System (CHESS). The work of developing the replacement technology for CHESS is described as the CHESS Replacement Project. In summary, ASIC alleges that ASX’s statements made on 10 February 2022 constituted misleading or deceptive conduct or were false or misleading.

3    On 15 November 2024 ASX filed a concise statement in response and on 7 February 2025 ASIC filed a concise statement in reply.

4    On 9 September 2024 orders were made (9 September Orders) for ASIC to provide ASX with a list of:

(1)    all documents obtained by ASIC during its investigation into ASX described below which resulted in this proceeding either:

(a)    pursuant to notices issued under the ASIC Act or the Corporations Act 2001 (Cth); or

(b)    as voluntary productions by third parties; and

(2)    transcripts of all voluntary interviews, or examinations conducted pursuant to s 19 of the ASIC Act in relation to ASIC’s investigation, and copies of all documents referred to in those transcripts,

save for any documents obtained from the ASX.

5    The 9 September Orders also required ASIC to provide ASX with a USB, portable hard drive device or electronic download link containing the documents referred to in the list, save for any documents or transcripts or parts thereof over which, relevantly, a claim of legal professional privilege is made.

6    By an amended interlocutory application filed on 7 March 2025 ASX now seeks production of 12 documents from ASIC over which, pursuant to Order 4 of the 9 September Orders, ASIC asserts a claim of legal professional privilege. Those documents comprise:

(1)    two draft witness statements and one signed statement (all from the same witness, Yuval Rooz) that were obtained by ASIC during its investigation of suspected contraventions of the ASIC Act and the Corporations Act by ASX and others (Rooz Statements); and

(2)    nine file notes prepared by ASIC’s solicitors and ASIC officers of the two interviews with Mr Rooz (File Notes).

Background

7    On 20 March 2023 ASIC commenced its investigation pursuant to s 13 of the ASIC Act into suspected contraventions of the ASIC Act and the Corporations Act by ASX and various of its subsidiaries and directors and officers in relation to ASX’s replacement of CHESS (Investigation).

8    The relevant period for the Investigation was 28 October 2020 to 28 March 2022. During that period ASX engaged Digital Asset Holdings LLC and Digital Asset Holding Australia Pty Ltd (together Digital Asset), a technology provider headquartered in New York City, to develop and provide associated software for the CHESS Replacement Project. Mr Rooz is the chief executive officer of Digital Asset and resides in the United States of America (USA).

9    On 3 April 2023 ASIC retained Norton Rose Fulbright (NRF) to provide it with professional legal services in connection with the Investigation. Since its commencement, Adam Anthony Boscoscuro, a senior specialist, Markets Enforcement, ASIC, has been a member of the team at ASIC with carriage of the Investigation and since September 2023 he has been the ASIC case supervisor with responsibility for the conduct of the Investigation. Mr Boscoscuro explained that, in addition to retaining NRF, throughout the Investigation ASIC has briefed senior and junior counsel to provide advice and, at all times, he has expected that ASIC would obtain legal advice from NRF and counsel as required by [4.7] of the Legal Services Directions 2017 (Cth) as to whether there were reasonable grounds for commencing proceedings against ASX.

10    Relevantly [4.7] of the Legal Services Directions provides:

A non-corporate Commonwealth entity is not to start court proceedings unless the entity has received written legal advice from lawyers whom the entity is allowed to use in the proceedings indicating that there are reasonable grounds for starting the proceedings. In urgent cases, the entity may start court proceedings on the basis of oral legal advice that there are reasonable grounds for starting the proceedings. Confirmation of that advice is to be obtained in writing at the earliest opportunity.

11    Between June 2023 and May 2024 ASIC compulsorily examined 21 people from ASX and Digital Asset. This included one employee of Digital Asset who resides in Australia, Andrew Harding, senior director of delivery, Australia.

12    As Mr Rooz resides in the USA and was not at any time during ASIC’s investigation present in Australia, ASIC was not able to examine him compulsorily. Accordingly, ASIC inquired, through Digital Asset’s lawyers, Quinn Emanuel Urquhart & Sullivan, whether Mr Rooz would be prepared to participate in a voluntary interview. Mr Rooz was prepared to do so and as a result:

(1)    on 16 August 2023 he attended a voluntary interview with Greg McLeod, senior investigator, Investigation and Enforcement Action, ASIC, another member of the Investigation team, solicitors in the employ of NRF, including Laura Crick a senior associate at NRF, and his lawyers. The interview was conducted by Microsoft Teams (First Interview); and

(2)    on 14 November 2023 he attended a second voluntary interview with Mr Boscoscuro, ASIC’s lawyers including Ms Crick, and his lawyers. That interview took place in person in Singapore (Second Interview).

13    At the voluntary interviews Mr Rooz was informed that ASIC considered that the interviews were confidential and he was requested to keep their content confidential save for discussions with his lawyers, which Mr Rooz agreed to do.

The First Interview

14    Ms Crick and Mr McLeod made notes at the First Interview. The evidence discloses that:

(1)    prior to the First Interview, Mr McLeod instructed Ms Crick to prepare a file note of the interview principally so that it could be provided to ASIC’s lawyers, including counsel, for the purpose of them providing legal advice to ASIC in relation to the Investigation;

(2)    Mr McLeod made handwritten notes in two of his notebooks which record his summary of some of the matters discussed at the First Interview and his thoughts about what Mr Rooz was saying. Mr McLeod prepared his notes so that he could refer to them when reviewing NRF’s file note of the First Interview to ensure its accuracy and completeness;

(3)    Ms Crick prepared a draft file note of the First Interview which records a summary of her understanding of the matters discussed during the interview. It is not a verbatim transcript of the First Interview; and

(4)    Ms Crick prepared four further versions of the draft file note which recorded the comments and queries of various ASIC officers and its lawyers. Those versions of the draft file note record a summary of Ms Crick’s understanding of the matters discussed at the First Interview informed by information and comments provided by those ASIC officers and its lawyers. They too are not a verbatim record of the First Interview.

15    Mr McLeod was cross-examined in relation to the creation of his notes of the First Interview and his instructions to Ms Crick to prepare a file note of that interview.

16    Mr McLeod accepted that several notices issued pursuant to s 33 of the ASIC Act sought communications between ASX’s former chief executive officer, Dominic Stevens, and Mr Rooz and that part of the reason he sought those materials was because of things he had learned at the First Interview but that was not the sole reason. Mr McLeod also explained that the relevant s 33 notices were based on other material ASIC had obtained and that he did not have regard to the file notes of the First Interview when drafting the notices.

17    Mr McLeod also accepted that one of the reasons he wanted a file note of the First Interview was to have an accurate record of what was said at that interview and that part of the reason for preparing his handwritten notes was to assist Ms Crick in compiling an accurate record of the interview. Mr McLeod gave evidence that he checked Ms Crick’s draft file note on 18 August 2023 to ensure that it accorded with his recollection of the interview but that, save in one respect, he was not intending, and did not, use the file note to work out what other steps should be taken in the Investigation. The one exception was that he referred to the file note of the First Interview in later preparing a notice pursuant to s 33 of the ASIC Act addressed to Digital Asset.

18    Mr McLeod gave evidence that he prepared and obtained file notes of the First Interview for the purpose of obtaining legal advice and that he considered, and turned his mind to, the purpose for which he wanted the note at the time he instructed Ms Crick to prepare it. He also accepted that the file note had a secondary purpose, namely to have an accurate record of what was said and which could be used when considering other aspects of the Investigation. Relevantly, Mr McLeod and senior counsel for ASX, Mr Sulan SC, had the following exchange:

Mr Sulan:    At the time that you requested the note, there was no occasion to consider what your main purpose was versus your subsidiary purpose for requesting the note?

Mr McLeod:    I did turn my mind to it at that time.

Mr Sulan:    But there was no occasion by which you had to do that. That has become necessary for the purposes of this application?

Mr McLeod:    No, that’s not correct.

Mr Sulan:    And, really, what’s happening is you’re having to think in hindsight, “Well, what was my purpose for requesting the note?”?

Mr McLeod:    No, that’s not correct.

Mr Sulan:    And I just want to ask you this question. If you put aside the need for legal advice, you still would have wanted a note of what Mr Rooz was saying in the voluntary interview; correct?

Mr McLeod:    We would require a note, yes

Mr Sulan:    Yes. So, in other words, even if you didn’t need legal advice, you would still want a note?

Mr McLeod:    We would like to have a record of it.

…

Mr Sulan:    So it’s really not possible to rank in hindsight what your purpose for seeking the note was, that is, whether it was a dominant purpose of getting legal advice as opposed to an investigative purpose?

Mr McLeod:    No, the purpose of getting the note was to provide it to counsel and our lawyers.

Mr Sulan:    Right. And what you’re having to do is seek to rank your purposes in hindsight. That’s what’s really happening?

Mr McLeod:    No, that’s not correct.

The Second Interview

19    Mr Boscoscuro and Ms Crick made notes at the Second Interview. The evidence discloses that:

(1)    in preparation for the Second Interview, Mr Boscoscuro instructed Ms Crick to prepare a typed file note of the upcoming interview. Mr Boscoscuro’s main reason for instructing Ms Crick to prepare a file note was so that it could be provided to ASIC’s lawyers for the purpose of them providing advice relevant to the Investigation including advice required by the Legal Services Directions;

(2)    Mr Boscosuro took some notes at the Second Interview which summarised what was discussed. He prepared those notes so that he could provide them to Ms Crick to use when preparing her file note of the Second Interview, which he subsequently did;

(3)    Ms Crick prepared a handwritten file note of the Second Interview recording a summary of her understanding of the matters discussed; and

(4)    Ms Crick subsequently prepared a typed draft file note of the Second Interview which also records a summary of her understanding of the matters discussed during the Second Interview informed by information provided by Mr Boscoscuro. Neither Ms Crick’s handwritten file note nor her draft typed file note of the Second Interview is a verbatim record or transcript of that interview.

20    Mr Boscoscuro was also cross-examined about the purpose for which he prepared his file note of the Second Interview.

21    Mr Boscoscuro accepted that a potential purpose of preparing notes of the Second Interview was to have an accurate record of what was said and another potential purpose was to have a record to review to assist in identifying other steps he may wish to take in the Investigation and as part of that considering what further notices might be issued pursuant to s 33 of the ASIC Act. However, his main concern at the time of the Second Interview and the purpose for which he prepared a file note of the interview and instructed Ms Crick to do likewise was to obtain legal advice.

22    Mr Boscosuro was firm in his evidence that at the time he prepared his file note he turned his mind to why he was doing so, namely for the purpose of obtaining legal advice, and that he instructed Ms Crick to prepare her file note for the same reason. Mr Boscosuro and Mr Sulan SC had the following exchange:

Mr Sulan:    Well, what I want to suggest to you is that there are at least two purposes, the legal advice purpose and the investigative purpose, fact-finding?

Mr Boscoscuro:     Again, that’s a potential use, yes.

Mr Sulan:    Yes. And to seek to rank those purposes is really something you’re having to do for the purposes of this application, but it’s not really something that would have happened at the time?

Mr Boscoscuro:     I fear we may be at a bit of cross-purposes, Mr Sulan. I’m just-I’ve accepted, I think, in my answers that there may have been a purpose, but it wasn’t the-an investigative purpose, but it wasn’t the purpose which was-which I recall being front of mind and the purpose for which I took my notes and instructed Ms Crick to prepare.

Mr Sulan:    But I’m just suggesting to you that – I mean, naturally, one doesn’t seek to rank their purposes at a particular point in time, and this is a task that you’re having to do in hindsight, given the nature of this application?

Mr Boscoscuro:     I don’t think so, Mr Sulan, because what I’m trying to explain to you is what was my purpose at the time, and that’s just based-that’s based upon my recollection.

Mr Sulan:    Yes. And it’s something you’re having to do in hindsight in-because of the nature of this application?

Mr Boscoscuro:     Well, I’m not sure that it’s in hindsight. It’s-it’s a recollection.

And:

Mr Sulan:    What I would suggest to you is that even if you hadn’t needed or wanted to get legal advice at the time, you still would have wanted an accurate note of what Mr Rooz was saying in the voluntary interview?

Mr Boscoscuro:     Are you asking me to speculate?

Mr Sulan:    Yes?

Mr Boscoscuro:     It’s likely-obviously, I-that wasn’t the situation, but if it was, as a matter of practice, generally, I would want a file note to be created or some record of an interview.

Mr Sulan:    Yes. So even if legal advice wasn’t, as you say, front of mind, you still would have wanted the file note?

Mr Boscoscuro:     It’s likely, yes.

Mr Sulan:    Yes. And so when you think about it in those terms, it’s hard to elevate one purpose over another, isn’t it?

Mr Boscoscuro:     In a hypothetical situation, it is difficult.

Mr Sulan:    Yes. And, really, what has happened here is that there are – there were two purposes, neither of which was dominant at the particular time, that is, in 2023?

Mr Boscoscuro:     No, the opposite. In the actual scenario, not the hypothetical one, the purpose was intentional and clear.

Preparation of Mr Rooz’s statement

23    Following the Second Interview Mr Boscoscuro instructed NRF to prepare a draft statement for Mr Rooz based on the First Interview and the Second Interview. Mr Boscoscuro caused the draft statement to be provided to Mr Rooz to commence the process of drafting his statement. He expected that the final version of Mr Rooz’s statement would set out his account of events relevant to the Investigation and that Mr Rooz would consider and revise the first draft as he thought fit.

24    Mr Boscosucro explained that the main reason for undertaking the process set out in the preceding paragraph was to obtain a signed statement to provide to ASIC’s lawyers for the purpose of providing legal advice to ASIC in relation to the Investigation, including as required by [4.7] of the Legal Services Directions. Mr Boscoscuro considered that a signed statement from Mr Rooz was the next best alternative to a compulsory examination and a transcript of his sworn evidence which would have been available had Mr Rooz been compellable. If a signed statement could not be obtained ASIC would have sought advice based on a draft outline statement, which was, in Mr Boscoscuro’s view, a less preferable option and potentially a less reliable record of Mr Rooz’s recollection.

25    Another reason, although not the main reason, for Mr Boscosuro requesting that Mr Rooz provide a voluntary statement was because he considered that future litigation against ASX in relation to the matters the subject of the Investigation was a possibility. Although at the time no decision had been made to commence proceedings, Mr Boscoscuro thought that having a signed statement form Mr Rooz might be useful for ASIC in any subsequent proceedings if Mr Rooz was called as a witness by ASX (rather than ASIC) and his evidence was inconsistent with the information he had provided to ASIC.

26    Between 21 November 2023 and 26 February 2024 NRF and Quinn Emanuel exchanged drafts of Mr Rooz’s statement with NRF providing the first draft on 21 November 2023. On 29 February 2024 Quinn Emanuel provided NRF with a statement signed by Mr Rooz dated 28 February 2024.

27    ASIC has provided copies of each of the transcripts of the s 19 interviews to ASX and has not made a claim for privilege over any of them. This includes the transcript of the compulsory examination of Mr Harding.

Counsels’ advice

28    As at 21 November 2023 ASIC had not obtained legal advice for the purposes of [4.7] of the Legal Services Directions. However, Mr Boscoscuro was of the view that such advice would be obtained in the near future.

29    On 4 December 2023 ASIC received advice from counsel which stated that the views expressed in it were subject to the provision of further evidence including an outline of evidence of, or statement from, Mr Rooz.

ASIC commences this proceeding

30    As set out above, on 13 August 2024 ASIC commenced this proceeding by the filing of an originating process and concise statement.

31    Paragraph 28 of the concise statement is central to ASX’s application and its argument, addressed below, that ASIC has waived privilege in the Rooz Statements. At [28] ASIC alleges that:

On 8 February 2022, being two days prior to ASX’s announcement of its half year results to the market, two meetings took place between ASX and DA representatives. The first meeting took place between, at least, ASX’s CEO and DA’s CEO. The second meeting took place between members of ASX’s and DA’s respective project management teams (including the Executive Sponsor for the CHESS Replacement Project at ASX). At one or both of those meetings, representatives of DA and ASX discussed DA delivering to ASX a release candidate for a descoped ITE1 Accreditation (Descoped ITE1 Accreditation Release Candidate). Insofar as statements of intent were made by DA on 8 February 2022, they were conveyed orally and were not, or alternatively were not clearly, documented. Further, any such statements by DA were not documented by way of a delivery plan to ASX prior to 10 February 2022 or at all.

32    ASX responds to that paragraph of ASIC’s concise statement at [35]-[38] of its concise statement in response where it contends that:

35.    On the morning of 8 February 2022, ASX’s Chief Executive Officer, Dominic Stevens, and Mr Rooz had a discussion for the purpose of determining whether Digital Asset could reduce the timeframes within which it would deliver work from those included in Digital Asset’s Draft Delivery Plan by providing adequate resources and prioritising the work it was to undertake in relation to the CHESS Replacement Project. During that discussion, Mr Rooz gave Mr Stevens his assurance that Digital Asset would adequately resource and prioritise the CHESS Replacement Project in order to ensure that Digital Asset would provide certain code to ASX by 15 March 2022. The provision of this code by 15 March 2022 would enable the upcoming critical path milestones of ITE2 and Accreditation to be met in time for the CHESS Replacement System to “Go-Live” in April 2023.

36.    In particular, Mr Rooz committed Digital Asset to ensuring that it deployed such resources as were necessary to enable it to provide ASX with code which included:

a.    code for identified change requests;

b.    code to address identified defects; and

c.    code for the operating hours functionality of the CHESS Replacement System,

being the items which ASX had identified as necessary to open ITE2 and for Accreditation to commence and return the CHESS Replacement Project to the critical path to “Go-Live” in April 2023 (the Required Work).

37.    After that meeting, Mr Stevens was of the view that Mr Rooz and Mr Hogben should have a further meeting with the ASX and Digital Asset project teams (given their more detailed knowledge of what was outstanding) to agree precisely what the scope of the Required Work included and to confirm that the Required Work would be undertaken in time to enable the April 2023 “Go-Live” date to be maintained.

38.    During the afternoon of 8 February 2022, Mr Rooz and Mr Hogben met with the leadership of the ASX and Digital Asset project teams. During that meeting, Mr Rooz reaffirmed Digital Asset’s commitment to perform the Required Work in sufficient time to enable the April 2023 “Go-Live” date to be met.

33    Also relevant to the events of 8 February 2022 are [44(e) and (f)] of ASX’s concise statement in response where ASX says that:

The 10 February releases represented, and it was the fact, that it was ASX’s opinion, reasonably held, that the CHESS Replacement Project was on track to meet the “Go-Live” date in April 2023. It was reasonable that ASX was of that opinion in the circumstances which then pertained, including by reason that:

…

e.    assurances were provided, on 8 February 2022, by Mr Rooz on behalf of Digital Asset to Mr Stevens and Mr Hogben, that prioritisation and resourcing would be provided by Digital Asset to ensure that the Required Work would be performed in sufficient time by Digital Asset to return the CHESS Replacement Project to the critical path for the “Go-Live” date of April 2023;

f.    confirmation being provided, on 8 February 2022, by Mr Rooz, to the ASX project team, in the presence of the Digital Asset project team, that prioritisation and resourcing would be provided by Digital Asset to ensure that the Required Work would be performed in sufficient time by Digital Asset to return the CHESS Replacement Project to the critical path for the “Go-Live” date of April 2023;

Consideration

34    Three questions arise for determination on this application: first, are the File Notes privileged? ASX asserts that they are not because ASIC has not satisfied the dominant purpose test; secondly, has there been an imputed waiver by ASIC of its claim for legal professional privilege over the Rooz Statements by reason of [28] of its concise statement; and thirdly, has there been an imputed waiver by ASIC of its claim for legal professional privilege over the File Notes (in the event ASIC establishes its claim for legal professional privilege) and the Rooz Statements because it has produced the transcripts of s 19 examinations of all other witnesses. I address each question below.

Legal principles

35    It is convenient to commence by setting out a summary of the applicable legal principles, which were not in dispute.

36    ASIC’s claim for privilege over the File Notes, which is subject to challenge by ASX, is to be assessed by reference to common law principles.

37    At common law, legal professional privilege applies to confidential communications made for the dominant purpose of the client obtaining legal advice or for use in litigation or regulatory investigations or proceedings, including reasonably anticipated proceedings: see Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at [35]; Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58 at [24].

38    In terms of establishing the dominant purpose of a communication, in Singtel a Full Court of this Court (Murphy, Anderson and Neskovcin JJ) said at [25]-[26]:

25    The purpose for which a document was created is a matter of fact to be determined objectively, having regard to the evidence, the nature of the document, and the parties’ submissions. Proof of dominant purpose can be achieved in a variety of ways depending on the case at hand. In discharging that onus, focused and specific evidence is needed. But the nature and extent of the evidence needed to prove the existence of privilege is fact and circumstance dependent: PJ [89].

26    The evidence of the intention of the person who made the document, or the person who authorised or procured it, is not conclusive of purpose. In many instances, it is the character of the documents over which privilege is asserted that will illuminate the purpose for which they were created: PJ [90].

39    In Singtel the Full Court added at [29]-[30]:

29    In Glencore International AG v Commissioner of Taxation [2019] HCA 26; 265 CLR 646 at [30], the High Court noted the importance of confining legal professional privilege “within strict limits”. One of those limits is to be seen in the requirement that a party claiming privilege satisfy the court of its purpose. The quality and precision of the evidence adduced in support of a claim for privilege is relevant, and dominance of purpose is not established by bare ipse dixit.

30    The Full Court of this Court in Kennedy v Wallace [2004] FCAFC 337; 142 FCR 185 at [4],[7],[14], [38] and [44] (Black CJ and Emmett J) noted that it is open to a trial judge having regard to the way in which a case is conducted to reject, or to accord limited weight, to assertions of a witness testifying that documents were for a privileged purpose. In that case, notwithstanding the subjective evidence of the person who created the document, the evidence of surrounding circumstances demonstrated the presence of such significant non-legal purposes that there was insufficient evidence to satisfy the Court that the legal purpose was dominant.

40    The relevant time for assessing purpose is when the communication was made, in the case of the File Notes this is when they were created: see Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 at [30].

41    It is not sufficient to show a substantial purpose or that the privileged purpose is one of two purposes of equal weight. The requisite purpose must be the most influential purpose, it must “predominate”: see Australian Securities and Investments Commission v Mitchell [2019] FCA 1484 at [60].

42    In AWB Ltd v Cole (No 5) (2006) 155 FCR 30 Young J set out the general principles which his Honour considered relevant to the disposition of the case before him at [44] including relevantly:

…

(7)    The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character: …

(8)    Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client: …

(9)    Subject to meeting the dominant purpose test, legal professional privilege extends to notes, memoranda or other documents made by officers or employees of the client that relate to information sought by the client’s legal adviser to enable him or her to advise: … The privilege extends to drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer: …

(Citations omitted.)

43    Insofar as actual or imputed waiver of legal professional privilege is concerned, the party alleging waiver carries the onus of establishing it: see State of New South Wales v Betfair Pty Ltd [2009] FCAFC 160 at [54].

44    In Mann v Carnell (1999) 201 CLR 1 the High Court considered when waiver of legal professional privilege might occur at common law. A majority of the Court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) observed (at [28]) that “[i]t is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of privilege”. Their Honours held at [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. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. 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.

(Footnotes omitted.)

45    The High Court also considered the question of waiver of legal professional privilege in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 where documents which were subject to a claim of privilege were inadvertently produced to the applicant, Expense Reduction Analysts Group Pty Ltd, when providing discovery. As to the applicable principles, the High Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) said at [30]-[31]:

30    According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. 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”.

    (Footnotes omitted.)

46    In Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236 at [48] Hodgson JA (with whom Campbell JA agreed) said:

In my opinion, this exposition is consistent with both Maurice and Mann, subject to the need to look for inconsistency: compare Bayliss v Cassidy (No 2) [2000] 1 Qd R 464; SQMB v Minister for Immigration and Multicultural Affairs (2004) 205 ALR 392 at [30]–[44], A Corkhill and M Selwyn, “Evolution of the Common Law Principle of ‘Issue Waiver’ ” (2008) 82 Australian Law Journal 338. 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. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client’s state of mind, in circumstances where there were confidential communications likely to have affected that state of mind.

Are the File Notes privileged?

47    ASX contends that the File Notes are not privileged. It submits that ASIC’s evidence does not establish that the voluntary interviews with Mr Rooz occurred for the dominant purpose of obtaining legal advice.

48    ASX submits that ASIC has not sought to distinguish the purpose for its voluntary interviews with Mr Rooz being in any way different in kind from its purpose in undertaking the compulsory examinations in the course of the Investigation. It contends that the chronology of events makes plain that there could not be any relevant distinction between those investigative tasks and that the voluntary interviews of Mr Rooz are properly understood as part of ASIC’s effort to investigate facts.

49    ASX submits that litigation privilege can also be ruled out. While ASX accepts that it may be difficult, in a particular case, to draw a bright line between an investigative purpose and the point in time when litigation is in contemplation, it notes that here no litigation privilege is asserted over the communications the subject of the File Notes. ASX contends that the absence of a claim of litigation privilege is consistent with the fact that the voluntary interviews of Mr Rooz fell squarely within and formed part of the Investigation.

50    ASX submits that, objectively viewed, ASIC’s dominant purpose in conducting the interviews with Mr Rooz was to further the Investigation or, at the very least, ASIC had two purposes, neither of which was dominant such that the communications that occurred during the interviews are not privileged.

51    As set out above, the purpose for which a document was created is a matter of fact to be determined objectively, having regard to the evidence, the nature of the document, and the parties’ submissions: see Singtel at [25] ([38] above).

52    The relevant inquiry is focussed on the documents in question, the File Notes, and not the purpose of the interviews with Mr Rooz. It is the File Notes over which ASIC claims legal professional privilege and it is the claim over those documents which ASX challenges. The question is: what was the dominant purpose for the creation of the File Notes: see Mitchell at [84]. In its submission ASX conflates the question of privilege in the communications which occurred at the First Interview and the Second Interview with that of privilege in the File Notes: see Alexiou v Australia and New Zealand Banking Group Limited (Notice to Produce) [2021] FCA 1538 at [6].

53    Here, the evidence relied on by ASIC clearly establishes that the dominant purpose for preparing the File Notes was to obtain legal advice. That evidence is set out above. In summary:

(1)    Ms Crick, a solicitor at NRF was instructed by ASIC, NRF’s client, to prepare a file note of the First Interview and a file note of the Second Interview. In total she prepared seven of the nine File Notes in issue. Each of Ms Crick’s file notes records a summary of her understanding of the matters discussed at the First Interview and the Second Interview. They are not verbatim records of those interviews. Each of the typed notes is marked as being confidential and privileged;

(2)    ASIC’s purpose as explained by Messrs McLeod and Boscoscuro in instructing Ms Crick to prepare those File Notes was for the dominant purpose of ASIC obtaining legal advice;

(3)    Mr McLeod instructed Ms Crick to prepare a file note of the interview principally so that it could be provided to ASIC’s lawyers and counsel for the purpose of them providing legal advice to ASIC in relation to the Investigation. He also prepared his own notes (see [14] above). In cross-examination Mr McLeod was firm in his evidence that his main purpose for preparing and obtaining the File Notes relating to the First Interview was to obtain legal advice; and

(4)    Mr Boscoscuro instructed Ms Crick to prepare a typed file note of the Second Interview so that it could be provided to ASIC’s lawyers for the purpose of them providing advice relevant to the Investigation including advice required by the Legal Services Directions. He also prepared a note of the Second Interview to provide to Ms Crick to assist her in preparing her own notes. In cross-examination, Mr Boscosuro was clear about the dominant purpose for which he sought preparation of the File Notes relating to the Second Interview including his own notes. While he accepted that there may be other purposes in preparing a file note, including to have an accurate record, he was firm in his recollection that he instructed preparation of the File Notes of the Second Interview for the purpose of obtaining legal advice.

54    It follows from the established facts as summarised above that: each of Ms Crick’s file notes records legal work carried out by a lawyer at her client’s request: see AWB at [44(7)-(8)]; and Mr McLeod’s and Mr Boscoscuro’s respective file notes were prepared by them to record information to assist with the preparation of the file notes to be provided to ASIC’s lawyers, NRF, so that, in turn, ASIC’s lawyers could provide legal advice to ASIC: see AWB at [44(9)].

55    I am satisfied that ASIC has established that the File Notes are privileged.

Has ASIC waived its privilege in the Rooz Statements because of [28] of its concise statement?

56    ASX’s contention that there has been an imputed waiver by ASIC of its claim for legal professional privilege over the Rooz Statements and the File Notes is centred around [28] of the concise statement (see [31] above). ASX submits that it may be inferred that: first, ASIC has relied on or had regard to the Rooz Statements and the account given by Mr Rooz of the 8 February 2022 meetings in preparing [28] of the concise statement; and secondly, that ASIC has relied upon or had regard to the contents of the voluntary interviews with Mr Rooz, recorded in the File Notes, as supporting [28] of its concise statement.

57    It contends that, having referred to these events in its non-confidential concise statement and in bringing a case which necessarily puts these events in issue, ASIC can no longer maintain confidentiality in its communications with Mr Rooz about the events of 8 February 2022.

58    In my view ASIC has not waived its claim of legal professional privilege over the Rooz Statements or the File Notes by reason of its pleaded case at [28] of its concise statement. My reasons for reaching that conclusion follow.

59    First, ASX assumes that the Rooz Statements and the File Notes contain information about the meetings referred to at [28] of the concise statement. Accepting for present purposes that is so, the confidentiality in the Rooz Statements and the File Notes is not lost because they record Mr Rooz’s recollection of what occurred on 8 February 2022. Nor simply by pleading the events of 8 February 2022 could it be said that ASIC waives its claim for privilege over the Rooz Statements, which were plainly prepared for the purpose of obtaining legal advice prior to the commencement of proceedings, or the File Notes which, as I have found to be the case, were also prepared for that purpose. If that were so then, as ASIC submits, it would follow that the mere pleading of a fact would waive privilege in every witness statement, draft outline of evidence or file note which referred to that fact.

60    This is not a case where ASIC has put the contents of the privileged communication in issue. It has not for example pleaded reliance on a document and then refused to disclose it. That, for example, the Rooz Statements may be relevant is not sufficient to waive the privilege in them, in particular because the party claiming the privilege must expressly or impliedly assert the contents of the privileged communication: see Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117 at [20]-[23]. That has not occurred in this case.

61    Secondly, there is no express reference at [28] of the concise statement to the Rooz Statements, their contents or the communications recorded in them. As I have already said, [28] of the concise statement goes no further that to plead a material fact. There is nothing in the concise statement that is inconsistent with ASIC maintaining its claim for privilege over the Rooz Statements or the File Notes.

62    Thirdly, as ASIC submits, as it has not disclosed the contents of the Rooz Statements or any communication recorded in the File Notes at [28] of the concise statement, or elsewhere, it cannot be said against ASIC that it has made disclosure in order to gain an advantage over ASX. There has been no “forensic unfairness”: see Arup at [29].

63    Fourthly, and contrary to ASX’s submission, ASIC has not acted inconsistently with the maintenance of confidentiality on the Rooz Statements or the File Notes. The evidence establishes that confidentiality in the Rooz Statements was secured at the outset with Mr Rooz, interviews with him which were recorded in the File Notes were conducted on the basis that they were confidential and all communications with Mr Rooz’s solicitors about the Rooz Statements were marked “confidential and privileged”. ASIC has not acted inconsistently with the maintenance of confidentiality by pleading the fact that a meeting took place on 8 February 2022 between Messrs Rooz and Stevens.

64    Fifthly and relatedly, no unfairness arises simply because ASIC has spoken with Mr Rooz and obtained a statement from him. There is no property in a witness; ASX is free to contact Mr Rooz to obtain information from him about the 8 February 2022 meetings and any other relevant events.

65    Finally, as I have already observed, at [28] of the concise statement ASIC refers to the meetings which took place on 8 February 2022 and by doing so does no more than plead material facts. It does not refer to the content of those meetings and, in particular, what Mr Rooz said to ASX at the time. In contrast, in its concise statement in response, ASX pleads a positive defence in which it contends that it had a reasonable basis for its representations made on 10 February 2022 about delivery of the CHESS Replacement Project because of assurances given by Mr Rooz on 8 February 2022. In other words, it is ASX that refers to and puts in issue the content of the 8 February 2022 meetings. In those circumstances it is difficult to see how there was any conduct on the part of ASIC by which it could be said that there was an imputed waiver in the Rooz Statements or the File Notes.

Has ASIC waived its privilege in the Rooz Statements and the File Notes because of its production of s 19 examination transcripts?

66    ASX submits that ASIC has waived privilege in the File Notes and the Rooz Statements by its inconsistent conduct. It contends that ASIC has adopted a different stance in relation to the File Notes and the Rooz Statements than it has in relation to the transcripts of the s 19 examinations and notes of voluntary interviews of other people it interviewed as part of the Investigation.

67    ASX submits that at least seven of the s 19 transcripts were taken after ASIC considered that it may bring proceedings against it and that ASIC may have been using its power under s 19 for an investigative purpose and may also have had the requisite privileged purpose. ASX observes that Mr Boscoscuro refers to ASIC’s litigation purpose enlivening from at least November 2023. ASX submits that by serving the s 19 transcripts and, in one case, notes of a voluntary interview, voluntarily, and in accordance with the 9 September Orders, and not making claims for privilege, ASIC has acted inconsistently with its maintenance of privilege in the equivalent materials concerning Mr Rooz.

68    ASX submits that ASIC’s conduct can be understood as “approbation and reprobation” such as to occasion a waiver of privilege because, having had the benefit of the information obtained by way of s 19 examinations and voluntary interviews in its investigation, ASIC has now chosen to disclose the information selectively from all but one key person from whom it has obtained information.

69    ASX submits that given the inconsistency in ASIC’s conduct, considerations of fairness, being the unfairness in ASIC putting forward a case that, in key respects, turns on information that Mr Rooz holds while declining to disclose that information, would be taken into account in assessing the inconsistency between ASIC’s conduct and the maintenance of confidentiality in the File Notes and the Rooz Statements.

70    The transcripts of the s 19 examinations and the notes of a voluntary interview and the existence of the Rooz Statements and File Notes were, in each case, disclosed pursuant to the 9 September Orders which relevantly required that:

(1)    by 16 September 2024 ASIC was to provide ASX with a list of:

(a)    all documents obtained by ASIC during the Investigation either pursuant to notices issued under the ASIC Act or the Corporations Act or as voluntary productions by third parties; and

(b)    transcripts of all voluntary interviews, or examinations conducted pursuant to s 19 of the ASIC Act in relation to the Investigation, and copies of all documents referred to in those transcripts,

save for any documents obtained from ASX (Order 2); and

(2)    by 19 September 2024 ASIC was to provide ASX with a USB, portable hard drive device or electronic download link containing the documents referred to in the list provided in accordance with Order 2, save for any documents or transcripts or parts thereof over which a claim for privilege is made (Order 4).

71    The existence of transcripts of the s 19 examinations and the notes of a voluntary interview were disclosed pursuant to Order 2(b) and the existence of the Rooz Statements and File Notes were disclosed pursuant to Order 2(a). There was no selective disclosure. Rather, disclosure of the existence of the material falling within the various categories was made by ASIC pursuant to the 9 September Orders. ASIC claimed privilege over the Rooz Statements and the File Notes pursuant to Order 4 of the 9 September Orders.

72    The transcripts of s 19 examinations and the Rooz Statements are by their very nature different. Examinations undertaken pursuant to s 19 of the ASIC Act are subject to the statutory regime set out in Pt 3 of Div 2 of the ASIC Act. Relevantly, the “inspector”, who is the person before whom the examinee appears, may administer an oath or affirmation and may require the examinee to answer a question put that is relevant to ASIC’s investigation (s 21), the examination must take place in private with the inspector having the power to give a direction as to who, other than the examinee’s lawyer, may be present (ss 22, 23) and the inspector may, and must if the examinee so requests, cause a record to be made of the examination (s 24).

73    It is common ground that at all relevant times Mr Rooz was outside of the jurisdiction such that ASIC could not use its compulsory powers to examine him. Thus, Mr Rooz was approached through his lawyers and asked if he would participate in a voluntary interview with ASIC. He agreed to do so. None of the prescription mandated by the ASIC Act for an examination under s 19 of that Act applies to a voluntary interview of the type in which Mr Rooz participated.

74    It is difficult to see how it can be said, as ASX does, that ASIC has approbated and reprobated in relation to the Rooz Statements and the File Notes. It has not taken any steps inconsistent with the maintenance of its legal professional privilege in those documents. It has at all times maintained the confidentiality in those documents and maintained its claim for privilege and has not disclosed any part of the content of its communications. The disclosure of the transcripts of the s 19 examinations of other witnesses is not an act inconsistent with the maintenance of the claim for privilege in the Rooz Statements and the File Notes given that those transcripts (and the voluntary interview) record the examination of other witnesses, not Mr Rooz.

75    Contrary to a submission made by the ASX, the transcripts of the s 19 examinations, on the one hand, and the Rooz Statements and File Notes, on the other, do not concern the same subject matter. They might concern events related to the subject matter of the Investigation and ultimately this proceeding but, even assuming in the absence of any evidence that is so, in each case they record the relevant individual’s recollection about the events the subject of their respective examination or interview. It is not possible to conclude that they relate to the same subject matter.

76    Nor can I discern any unfairness arising from the fact that ASIC has disclosed the transcripts of its compulsory examinations but maintained its claim for privilege over the Rooz Statements and the File Notes. That is principally for the reason identified in the preceding paragraph. The transcripts of examinations undertaken pursuant to s 19 of the ASIC Act which were disclosed because of the 9 September Orders relate to other people, not Mr Rooz. It follows that each of those transcripts concern the answers given to questions posed to the relevant examinee. Further, putting to one side ASX’s contention about the effect of [28] of the concise statement addressed above, ASX does not say, nor could it be said, that merely by the disclosure of the transcripts of the s 19 examination, ASIC has made any express or implied assertions about the content of Rooz Statements or the File Notes.

77    That the Rooz Statements and the File Notes may assist ASX in the defence of ASIC’s claim is not a basis on which it can be said that ASIC has acted inconsistently leading to unfairness. In any event, as I have already observed, there is no property in a witness. ASX is free to approach Mr Rooz at any time.

78    ASX has not established that there has been any imputed waiver of ASIC’s claim of legal professional privilege over the Rooz Statements and the File Notes by reason of its disclosure of the transcripts of the s 19 examinations.

79    Finally, for completeness I note that in its written submissions ASX raised ASIC’s obligation of fairness as a model litigant, referring to several cases. However, it did not develop its analysis of the legal principles or seemingly rely on that analysis to support its contention that there had been an imputed waiver by ASIC of its privilege in the Rooz Statements and the File Notes. Consistently with that approach, in oral submissions senior counsel for ASX informed the Court that ASX did not, in making its case, allege that ASIC had breached its obligations as a model litigant. Accordingly, it is not necessary for me to address the authorities referred to by ASX in its written submissions or ASIC’s response to them.

Conclusion

80    ASX has not succeeded in challenging ASIC’s claim for legal professional privilege in the File Notes or in establishing that ASIC has waived its legal professional privilege over the File Notes or the Rooz Statements. It follows that ASX’s interlocutory application filed on 7 March 2025 should be dismissed. As ASX has been unsuccessful, it should pay ASIC’s costs of that application.

81    I will make orders accordingly.

Associate:

Dated:    27 May 2025