Federal Court of Australia

Alexiou v Australia and New Zealand Banking Group Limited (Privilege) [2025] FCA 1697

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended interlocutory application filed on 17 September 2025 seeking the production, in unredacted form, of a copy of each of the documents listed in amended Annexure A to the application, be dismissed.

THE COURT NOTES THAT:

1.    By consent, the Court does not make any order as to the costs of the application, given s 570 of the Fair Work Act 2009 (Cth).

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

REASONS FOR JUDGMENT

YOUNAN J:

INTRODUCTION

1    The applicant, Mr Etienne Alexiou, was employed by the respondent, the Australia and New Zealand Banking Group Limited (ANZ), as the Global Head of Balance Sheet Trading from December 2013, until he was stood down on 19 November 2014, and ultimately terminated on 1 September 2015.

2    By its further amended originating application filed 17 March 2025, the applicant seeks relief under the Corporations Act 2001 (Cth), Banking Act 1959 (Cth), Fair Work Act 2009 (Cth), in common law and equity, arising from inter alia the respondent’s decision to stand down the applicant, terminate his employment, withhold performance bonuses and forfeit deferred equity held on trust.

3    The hearing of the originating application was listed before Perram J on 29 September 2025 for a period of seven weeks (the substantive proceeding), with other interlocutory and preliminary matters heard from 22 September 2025.

4    The applicant filed an interlocutory application on 27 August 2025, seeking production by the respondent of certain discovered documents, unredacted, which are the subject of claims of legal professional privilege by the respondent. On 17 September 2025, the applicant filed an amended interlocutory application, which sought to challenge the privilege claims over an additional 10 documents (the application).

5    The documents the subject of the application total (approximately) 186, belonging to 9 categories (together, the Documents). The Documents are identified in Amended Annexure A to the application by way of a “Document ID” number. Amended Annexure A includes, at times, duplicate documents, one document without a Document ID (row 41 of the table titled “Standing Down Emails”) and two documents over which privilege is not claimed by the respondent. The respondent withdrew privilege claims (without admission) over 53 documents prior to the hearing of the application. Consequently, privilege claims are pressed over the remaining documents.

6    Given the nature of the objection to production of the Documents, it is appropriate that a judge of this Court, other than the primary judge, determine the application, so that the primary judge is not presented with the option of inspecting documents that the primary judge may decide they should not inspect.

7    Three key issues were the focus of the hearing of the application:

(1)    First, whether the Court ought to inspect the Documents, and if so, following what procedure (the Inspection Issue).

(2)    Second, the validity of the privilege claims made by the respondent over the Documents (the Validity Issue).

(3)    Third, if privilege were established, whether the respondent had waived that privilege (the Waiver Issue).

8    At the hearing of the application, I determined to inspect the documents, with the aid of evidence from the respondent, and submissions from the parties. Subsequently, on 26 September 2025, I ordered that the application be dismissed. With the consent of the parties, I did not make any order as to costs, by reason of s 570 of the Fair Work Act. These are my reasons for making those orders.

BACKGROUND

9    The facts described below were those put to the Court, in advance of trial, in affidavit evidence for the purpose of determining the privilege claims. The summary below does not purport to resolve any factual dispute between the parties.

10    The applicant was first employed by ANZ on or around 23 June 2011. He held a number of roles until, most relevantly, he was promoted to the role of Global Head Balance Sheet Trading on or around 5 December 2013.

11    The applicant alleges that, on or around 4 October 2011, he made an internal complaint about the approach that the respondent and its personnel were taking towards ANZ’s Bank Bill Swap Reference Rate (BBSW) (the October 2011 Complaint).

12    The applicant alleges that, in or around July 2012, the Australian Securities and Investments Commission (ASIC) commenced an investigation of BBSW panel bank members, including ANZ, in relation to their involvement in the BBSW rate setting process (the ASIC BBSW Investigation). The respondent contends, in its defence, that ASIC “commenced making enquiries” of BBSW panel bank members “in or around mid-2012”.

13    In late February or early March 2013, the applicant alleges that he made an oral complaint in relation to the conduct of the ANZ Treasury regarding the BBSW rate setting process (the February 2013 Complaint).

14    On 12 August 2013, ASIC served ANZ with a notice issued under s 33 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) requiring document production.

15    In or around 2014, ANZ established an internal investigation into its participation in the BBSW rate setting process, which was part of its response to the ASIC BBSW Investigation. That investigation was referred to as Project Arrow and, by July 2014, was chaired by Mr Richard “Bob” Santamaria, who was, at that time, the ANZ Group General Counsel. In this role, Mr Santamaria coordinated and supervised Project Arrow, and ANZ’s response to the ASIC BBSW Investigation.

16    On or around 17 July 2014, the applicant alleges that he had a conversation with Mr Eddie Listorti (Co-Head of Fixed Income, Currency and Commodities – Foreign Exchange) in the course of which he informed him of the October 2011 Complaint (the 17 July 2014 Complaint).

17    On 18 July 2014, the applicant alleges that he sent an email to Mr Fred Pucci (Head of Compliance) seeking confirmation that Mr Pucci had a record of the October 2011 Complaint (the 18 July 2014 Complaint).

18    The respondent led evidence that, on 29 July 2014, ASIC issued a notice under s 19 of the ASIC Act to ANZ directing it to deny specified employees access to their emails and chat messages sent or received prior to 31 December 2013, except where reasonably necessary (affidavit of Michael Tamvakologos affirmed on 10 September 2025 (Tamvakologos Affidavit) at [35]).

19    In or around July 2014, ANZ engaged Clayton Utz to provide legal advice to ANZ in connection with the ASIC BBSW Investigation and, as deposed by Mr Tamvakologos in his affidavit (at [32]), matters arising from the ASIC BBSW Investigation (including Project Arrow).

20    On or around 8 August 2014, the applicant alleges that he informed Mr Listorti that he intended to disclose the substance of the October 2011 Complaint to ASIC. On or around 15 August 2014, the applicant alleges that he disclosed the information the subject of the October 2011 Complaint to ASIC (the First ASIC Disclosure).

21    In or around October 2014, the applicant purports to have formed the view that ANZ had engaged in trading activity using inside information for profit, in contravention of Corporations legislation. He alleges that at this time, he made a fresh oral complaint (the October 2014 Complaint).

22    On or around 22 December 2014, the applicant alleges that he disclosed to ASIC the subject-matter of the October 2014 Complaint and the complaint defined in the third amended statement of claim as the “December 2014 Complaint” (the subject of which has been redacted) (the Second ASIC Disclosure).

23    On or around 23 February 2015, the applicant alleges that he made an oral complaint to Messrs Santamaria and Collins that he did not believe the respondent’s reasons for the standing down decision were genuine (the February 2015 Complaint).

24    The respondent led evidence that, in total, ASIC issued over 90 statutory notices to ANZ concerning suspected contraventions of ANZ and its personnel arising from the ASIC BBSW Investigation (Tamvakologos Affidavit at [34]). The respondent contends that a number of these notices, issued in August 2014, required ANZ to produce communications among ANZ employees, including those involving the applicant (Tamvakologos Affidavit at [36]-[37]). Further notices requesting, amongst other things, internal and external communications, were issued by ASIC in November 2014 (Tamvakologos Affidavit at [38]).

25    On 19 November 2014, ANZ stood down seven employees, including the applicant. The applicant was stood down on full pay. However, his bonus for the 2014 performance year was awarded provisionally. On the same day, ANZ issued an ASX announcement and media release to the market attesting to ANZ’s cooperation with the ASIC investigation, and its decision to have seven employees stood down as a precaution pending the completion of the investigation (the Press Release).

26    The applicant alleges that he was informed that he had been stood down because: (a) he was a key person in the ASIC BBSW Investigation; (b) he was likely to be required for a follow up interview by ASIC; and (c) the respondent believed that ASIC would require more senior executives to be stood down.

27    In the substantive proceeding, the applicant alleges that, in deciding to stand down the applicant and issue the Press Release, ANZ intended to cause detriment to the applicant in response to the complaints and disclosures made by the applicant. Further, the applicant alleges that ANZ sought to present the applicant as a ‘scapegoat’ in the ASIC BBSW Investigation; discourage the applicant from being a witness for, and cooperating with, ASIC; and to damage and discredit the applicant as a witness in any case brought by ASIC.

28    In respect of the applicant’s claim that ANZ contravened the Fair Work Act, Mr Alexiou alleges that the complaints were each an exercise of a workplace right within the meaning of s 341, and that ANZ consequently took adverse action against him contrary to the protections under the Fair Work Act.

EVIDENCE OF THE PARTIES

29    The applicant read the following affidavits:

(1)    the affidavit of Timothy Randolph Price sworn on 27 August 2025 (First Price Affidavit), and tendered its exhibit, TRP-11; and

(2)    the affidavit of Timothy Randolph Price sworn on 12 September 2025 (Second Price Affidavit), and tendered its exhibit, TRP-12.

30    The parties tendered an agreed position on the respondent’s objections to the applicant’s evidence (MFI#1).

31    The respondent read the Tamvakologos Affidavit, and its exhibit MT-21. The confidential exhibit MT-22, which contained the Documents, was not tendered in open Court but was produced to the Court for inspection on a confidential basis. Upon objection as to opinion evidence, I did not admit paragraph [12] of the Tamvakologos Affidavit. I did not accept the remainder of the applicant’s objections to the admissibility of the affidavit.

STRUCTURE OF THE PRIVILEGE CLAIMS

32    The Documents the subject of the application are set out in an annexure to the amended interlocutory application, titled “Amended Annexure A”. At the hearing of the application, the respondent tendered a document titled “Respondent’s Aide to Pressed Privilege Claims”, which was marked for identification as MFI#2 (the Schedule). In the Schedule, the respondent sets out: (a) the respondent’s basis for its privilege claims; and (b) a summary of the parties’ positions on waiver in respect of each of the Documents.

33    My determination on privilege and waiver in respect of each of the Documents is recorded in Annexure 1 to this judgment (which largely replicates the structure of Amended Annexure A). In Annexure 1, the columns titled “Privileged Basis” and “Waiver Position” identify, respectively, the respondent's basis for its privilege claims, and the parties’ positions on waiver (as articulated by the respondent in the Schedule).  

34    In Amended Annexure A (and as reflected in Annexure 1 to this judgment), the Documents are divided into nine tables, or “categories”, according to their subject matter. Those categories are as follows:

(1)    Category one comprises the documents contained within the table titled “18 July 2014 Complaint Documents”.

(2)    Category two comprises the documents contained within the table titled “Group Investigations / EA Emails - December 2014”.

(3)    Category three comprises the documents contained within the table titled “Standing Down Emails”.

(4)    Category four comprises the documents contained within the table titled “Identification of the Applicant by the Media (28 November 2014)”.

(5)    Category five comprises the documents contained within the table titled “The 5 January 2015 AFR Article”.

(6)    Category six comprises the documents contained within the table titled “Chats Schedule and Code of Conduct Review”.

(7)    Category seven comprises the documents contained within the table titled “Board Reports and Minutes”.

(8)    Category eight comprises the documents contained within the table titled “Expanded Leadership team Conference”.

(9)    Category nine comprises the documents contained within the table titled “External Communications Documents”.

35    The respondent has withdrawn its privilege claims in respect of the documents that comprise categories one, four and eight, and also a number of documents in the remaining categories.

36    The respondent contends that Amended Annexure A, in many instances, contains challenges to multiple versions of the same email chain. The respondent restructured Amended Annexure A in its Schedule, which groups the Documents based on common email chains. The respondent explained that each row of the Schedule identifies a particular email chain (the “exemplar chain” document) which contains each of the communications over which privilege is challenged for each document group. In the Schedule, the respondent articulates for each exemplar chain the basis of the privilege claimed, and the parties’ positions on waiver.

37    The applicant takes issue with the “implied assertion” in the Tamvakologos Affidavit that the exemplar chain documents are emblematic of other documents which they are said to represent, which is particularly acute in circumstances where the applicant is unable to access the Documents to test the respondent’s claim. The respondent explained that the purpose of the Schedule is not to obscure, but rather, to facilitate efficiency.

38    I have relied on the Schedule as a tool of analysis. For the purposes of my assessment of the Documents, I have not assumed that the exemplar chain documents are ‘emblematic’ of other documents, which have been examined each on their own merit, in the context of the chain in which they appear.

INSPECTION

Application of common law principles

39    As this application is made pre-trial, the common law principles of legal professional privilege (and waiver) are applicable: Mann v Carnell (1999) 201 CLR 1 at [27] (Gleeson CJ, Gaudron, Gummow and Callinan JJ); Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58 at [24].

40    It is well settled that 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”: Robertson at [24]. The dominant purpose is “the ruling, prevailing, or most influential purpose”: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [39], citing Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ). This is a question of fact, to be determined objectively. Whilst evidence of the subjective purpose will be relevant and may be decisive, it is not necessarily so: NSW Ports at [39]; AWB Ltd v Cole (2006) 152 FCR 382 at [110].

Discretion to inspect documents

41    The Court has the discretion to inspect disputed documents and should not be hesitant to exercise this power to resolve a privilege dispute: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at [52] (Gleeson CJ, Gaudron and Gummow JJ); Perazzoli v BankSA, a division of Westpac Banking Corporation Ltd [2017] FCAFC 204 at [24].

42    The purpose of the Court’s power to inspect documents has been described as “a means of enabling a claim to be scrutinised and tested”, and is not intended to detract from the requirement that the party asserting privilege prove, by admissible evidence, the grounds of the claim: Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [31] (Brereton J). Justice Brereton clarified that such evidence ought to set out the facts from which the Court can see that the assertion of privilege is rightly made: Rinehart at [27]. Cross-examination and inspection, in his Honour’s opinion, are available tools to subsequently test the privilege claim: Rinehart at [28]-[30].

43    In Rinehart, Brereton J refused to inspect the disputed documents in circumstances where no testimonial evidence was adduced from persons capable of shedding light on the purpose for which the documents were created, and where the party claiming privilege merely requested the Court to inspect the documents in order to determine the claim: at [18], [34], [36]. The parties disagreed as to the correct construction of Rinehart, and consequently the approach that this Court ought to adopt as regards inspection.

Submissions of the parties

44    The respondent submits that the Court could, and should, exercise its discretion to inspect the Documents as part of the resolution of this dispute.

45    While the respondent accepts that the applicant would be at a forensic disadvantage should the Court exercise its discretion to inspect the Documents, it is contended to be an inevitable consequence of the nature of a privilege dispute.

46    The respondent, distinguishing the present matter from Rinehart, maintains that it has led an affidavit from ANZ’s solicitor, Mr Tamvakologos, with cogent evidence as to his informed understanding of the matters leading to privilege. Conversely, as observed by the Court of Appeal, the claimant in Rinehart had “adduced no evidence at all in support of an essential integer of her claim”: Rinehart v Rinehart [2016] NSWCA 58 at [41] (Rinehart (appeal)). By way of example, the respondent took the Court to the Full Court decision of Perazzoli, in which the Court held (at [101]) that the party asserting privilege had put on appropriate evidence; namely, a privilege schedule with a brief description of the nature of each document, its date, provenance and the basis of the claim of privilege, “sufficient to permit a meaningful testing of the claims to privilege”.

47    The applicant’s initial position, laid out in its written submissions, was that inspection was appropriate. In oral submissions, however, the applicant suggested alternative approaches that the Court could, and should, take in order to promote procedural fairness between the parties.

48    On the applicant’s construction of Rinehart, if the privilege claim lacks any evidentiary merit, then the court does not need to inspect the document to determine that the claim fails. Citing Wigney J in NSW Ports, the applicant submits that inspection cannot substitute for evidence of the privilege claim (at [50]). The applicant submits that should the Court inspect where there is insufficient evidence to justify the claim, it is tantamount to converting the inspection power into a means of proving the claim rather than testing the claim, which is its proper function.

49    The applicant submits that the respondent’s evidence was not direct evidence as to the purpose for which the communications were produced, Mr Tamvakologos not having been involved in the communications himself. Mr Tamvakologos’ evidence purportedly went no further, or barely went further, than assertions of the facts that ANZ’s lawyers were party to the relevant correspondence or that litigation was contemplated at the time. Where Mr Tamvakologos deposed that Mr Santamaria reviewed a document and conveyed his understanding of it, the applicant contends that no evidence of the objective characteristics of the document was provided to bolster his subjective observations.

50    By way of example, the applicant took the Court to an email chain (document “ABG.1900.0223.1448”) between three employees at ANZ (none of whom were in legal roles), and Mr Tamvakologos’ evidence that the email is privileged on the basis that it refers to work being undertaken by Clayton Utz in response to the ASIC BBSW Investigation. In the applicant’s submission, this evidence is insufficient to sustain a claim of privilege, as a “mere reference” to work being undertaken may not in itself be privileged if it does not actually disclose the substance of any legal advice.

51    When asked how further evidence might be provided without betraying the claimed privilege, the applicant submitted that the respondent might provide context to the communications without disclosing their content.

52    The applicant presented three options as to how the Court might proceed:

(1)    If the Court accepts the applicant’s submission that the respondent provided insufficient evidence to support its privilege claims, the Court should not inspect the Documents, and instead reject those claims.

(2)    If the Court decides to inspect the documents, the Court should allow both parties to make submissions. Furthermore, as the applicant’s counsel were not briefed in the trial, the applicant proposed that the Court should allow its counsel to inspect the documents, subject to confidentiality undertakings, an approach that has been taken in public interest immunity matters: Goussis v The King [2022] VSCA 255.

(3)    In the alternative, the Court might inspect the documents without the aid of submissions from any party.

53    Options two and three are directed towards mitigating any forensic disadvantage occasioned by the applicant being unable to inspect the Documents.

54    The respondent contends that neither option one nor option two would be appropriate.

55    In relation to option one, the respondent contends that a two step-process whereby the Court must reach an evidentiary threshold before inspecting the documents, would involve legal error. The respondent submits, first, that the first instance decision in Rinehart must be read in light of the Court of Appeal’s decision, which makes clear that the lack of evidence pertained to who had a claim to privilege and in what capacity: Rinehart (appeal) at [4]. The respondent reiterated that in Rinehart, the claimant adduced no evidence: “[t]he solicitor did not himself give any evidence, even on information and belief, as to the facts and circumstances in which those documents had come into existence…”, nor was there “any identification of why it was said that the documents were privileged in [the claimant’s] personal capacity as opposed to her capacity as … trustee”: Rinehart (appeal) at [10]. By contrast, the respondent in this case provides evidence of both the subject of the claimed privilege and the capacity in which that privilege is claimed.

56    In response to the applicant’s complaint regarding the adequacy of Mr Tamvakologos’ evidence, the respondent drew the Court’s attention to McKenzie v Cash Converters International Ltd [2017] FCA 1564. In that case, Markovic J stated that in circumstances where there are numerous documents in issue and multiple authors, it is not the case that the maker of every document must always be called to give evidence, and indeed to do so may be contrary to the facilitation of the quick, inexpensive and efficient resolution of disputes (at [110]).

57    Second, the respondent submits that Barnes v Commissioner of Taxation [2007] FCAFC 88; 242 ALR 601 supports the inverse position: that where there is a dearth of evidence, the Court has greater reason to inspect: at [19]-[20]; see also Cash Converters at [128]. The respondent contends that any prejudice to the applicant, because of perceived deficiencies in the evidence, is cured and absolved by the Court inspecting the Documents.

58    Third, the respondent characterises the applicant’s suggested approach as, in effect, a legal fetter on the Court’s discretion, in contradiction with Esso. As observed by the Court of Appeal, Rinehart should not be read “in a way which is inconsistent with the existence of a discretionary power” to inspect the documents; the powers of the Court are “wide and should not be unduly circumscribed”: Rinehart (appeal) at [20].

59    As to option two, the respondent contests that Goussis, as a public interest immunity matter, is sufficiently analogous to the present case so as to warrant diverting from the usual practice of the Court. The respondent emphasised that the Court cannot compel the respondent to give to the applicant access to the Documents over which privilege is claimed, thereby overriding the respondent’s legal right to privilege, in circumstances where the Court has not ruled that the asserted privilege does not exist. The respondent maintained that there was “no substitute” for the Court reviewing the material directly, supported by an aide memoire handed up by the respondent and the respondent’s evidence.

Appropriate for the Court to inspect the Documents

60    I did not understand the Tamvakologos Affidavit to be proffered as a substitute for inspection, in which case, it was not evident in what respect that evidence was said to be deficient. That is, the purported evidentiary threshold for inspection (viz., what the Court should know before it decides whether to inspect the disputed documents), was not made clear.

61    I am not satisfied that there is such a threshold. The distinction drawn by the applicant between an approach that operates as a constraint on the Court’s power, and one that is concerned with the proper exercise of discretion, is ephemeral. Furthermore, any deficiency in evidence may provide an impetus for inspection of the disputed documents, so as to draw conclusions directly from the form and contents of the particular documents: Barnes at [20].

62    In circumstances where I have been provided with the respondent’s evidence and submissions as to the context in which the relevant communications were made, including descriptions of the role and function of the interlocutors, and the basis of the privilege claimed, I considered that the appropriate and most efficient course would be to inspect the Documents, after providing both parties with an opportunity to make submissions in respect of them. This came in the form of the respondent making submissions about particular aspects or features of the Documents that it said attracted privilege, with the applicant responding to those submissions, insofar as it could without the benefit of inspecting those Documents. Both parties’ submissions were limited by the maintenance of privilege over the Documents; the applicant’s submissions more so.

63    However, unlike the decision of Beach JA in Goussis at [21], I am not of the view that a contradictor (facilitated by the applicant’s counsel inspecting the Documents) is necessary for the purpose of determining the respondent’s objection to providing the Documents on the basis of a claim of legal professional privilege. The reasons provided by Beach JA in Goussis at [21]-[22] do not pertain here. As his Honour acknowledged (at [23]), the appropriate course to be taken requires a proper examination of the specific facts of the case.

64    In the absence of the respondent’s willingness to produce the Documents, I did not consider it appropriate to allow the applicant’s counsel (albeit not briefed in the trial) to inspect the Documents, subject to confidentiality undertakings. That would be inconsistent with the maintenance of privilege over those Documents, in respect of which the Court was yet to rule. The applicant accepted as much in oral submissions.

VALIDITY

Legal principles

65    The respondent maintains its claims of privilege over the Documents on the basis of legal advice privilege and litigation privilege.

66    Advice privilege arises where there is a confidential communication passing between a client and the client’s legal adviser, for the dominant purpose of obtaining or giving legal advice: Cantor v Audi Australia Pty Ltd [2016] FCA 1391 at [62]. Litigation privilege arises in respect of confidential communications passing between a client, the client’s legal adviser and third parties, for the dominant purpose of use in, or in relation to, litigation that is either pending or in contemplation: NSW Ports at [41]. Legal proceedings will be anticipated if at the time that the relevant communication is made, there is a “real prospect of litigation, as distinct from a mere possibility, but it does not have to be more likely that not”: NSW Ports at [42].

67    The party claiming privilege bears the onus of proving the facts necessary to establish the relevant privilege: Grant v Downs (1976) 135 CLR 674 at 689 (Stephen, Mason and Murphy JJ); NSW Ports at [49]. A “bare or skeletal” assertion of privilege without supporting evidence is insufficient to support a claim of privilege; the Court should be assisted by “focused and specific” evidence, preferably in relation to each individual document: Barnes at [18]; NSW Ports at [49]. In Barnes, the Court cited these principles in determining that the affidavit evidence was “manifestly insufficient” to support a claim of privilege, and that, consequently, the Court should inspect the documents in question: Barnes [19]-[20].

68    Privilege may attach to confidential communications between an employer and their in-house lawyer, provided the latter was consulted in their professional capacity, and the communication otherwise meets the dominant purpose test: Waterford v The Commonwealth (1987) 163 CLR 54 at 99-100 (Dawson J); NSW Ports at [48].

69    What amounts to “legal advice” in this context is not to be narrowly construed as formal advice as to the law; it extends to advice as to “what should prudently be done in a relevant legal context”: Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 at [15]. Therefore, “[w]here a lawyer has been retained for the purposes of providing legal advice in relation to a particular transaction, communications between the lawyer and client relating to the transaction will prima facie be privileged, notwithstanding they do not contain advice on matters of law; it is usually enough that they are directly related to the performance by the lawyer of his or her professional duty as legal adviser to the client”: Kenquist at [15]. In the context of protracted or complex transactions, where information is passed between lawyer and client as part of a continuum aimed at keeping both informed so that advice may be sought and given as required, privilege may attach: Kenquist at [15].

70    However, the concept of “legal advice” will not extend to advice that is “purely commercial or of a public relations character”: AWB Limited v Cole (No 5) (2006) 155 FCR 30 at [44(7)] (Young J).

Submissions of the parties

71    The Validity Issue concerns the merits of the respondent’s claim of privilege over the Documents. As the party claiming privilege, the respondent bears the onus of proving that claim.

72    It was not in dispute that, at the relevant time, Mr Santamaria (ANZ Group General Counsel and Company Secretary) coordinated and supervised Project Arrow.

73    Mr Tamvakologos deposed that at the time Mr Santamaria was appointed to lead Project Arrow (in or around mid-2014), Mr Santamaria had formed the view that there was a real prospect that litigation would occur. This was based on the seriousness of ANZ’s alleged conduct, the escalating issuance of ASIC notices to ANZ, and ASIC’s concurrent investigations of other panel bank members. The respondent submits that this was a sound basis for Mr Santamaria’s view, as confirmed by the fact that proceedings were commenced by ASIC in March 2016.

74    Having formed this opinion in mid-2014, Mr Santamaria regularly communicated with ANZ’s in-house lawyers regarding the ASIC BBSW Investigation, being Mr Gaudion, Ms Smith, Ms Hone, and Mr Finger. Mr Tamvakologos deposed that Mr Santamaria, and those reporting to him, gave legal advice and received requests for the same, in the expectation that ASIC might commence civil proceedings as an outcome of its investigation.

75    The respondent also relied on the fact that, in or around July 2014, Clayton Utz was engaged to provide legal advice to ANZ in connection with the ASIC BBSW Investigation and Project Arrow.

76    The central dispute between the parties is whether Mr Santamaria, and other internal and external lawyers, were acting in their professional capacity as the respondent’s lawyers in relation to each contested communication, and whether their dominant purpose in making those communications warranted the privilege claimed in respect of them.

The role of the respondent’s in-house legal counsel

77    The applicant contends that when Mr Santamaria was working on Project Arrow, his role comprised a mix of legal and non-legal work (i.e., managerial or administrative work). The applicant drew the Court’s attention to examples of communications by or involving Mr Santamaria that were not legal in nature, to demonstrate that Mr Santamaria was not engaged exclusively in the provision of legal advice. From this, I took it that the legal nature of the communication could not be assumed on the basis of Mr Santamaria’s legal role.

78    Further, in the absence of any evidence as to whether the respondent’s in-house lawyers (except Mr Santamaria) held practicing certificates, the applicant submits that there is a question as to their legal qualifications and independence. Ultimately, the applicant conceded that this was a relevant, although not determinative, consideration.

79    The applicant contends that the Court should approach the respondent’s assertions of privilege with “some skepticism”, in circumstances where approximately a quarter of the respondent’s privilege claims were withdrawn following the filing of the application. That concession on the part of the respondent could be marshalled in support of its remaining claims. In any event, I do not consider it relevant to my assessment of the (remaining) Documents.

80    The respondent contends that Mr Santamaria’s role in coordinating ANZ’s response to the Project Arrow investigation does not mean that legal advice given by Mr Santamaria, or other lawyers, ceased to be privileged. Citing NSW Ports (at [48]), the respondent submits that there is no separate requirement to demonstrate that ANZ’s in-house lawyers were independent from their employer, so long as they were acting in their professional capacity.

81    The respondent disputes that evidence of a practicing certificate is necessary to ground a claim of privilege. The respondent contends that it can readily be inferred that the relevant persons had legal qualifications, on the basis that they were employed by a listed public company in the role of in-house counsel. This is further evidenced by Mr Tamvakologos’ evidence as to the employment roles of Mr Santamaria, Mr Gaudion, Ms Smith, Ms Hone and Mr Finger at ANZ (Tamvakologos Affidavit [10]-[23]).

82    The relevant general legal principle is stated in AWB (No 5) at [44(10)] (with emphasis added):

Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client.

83    It has been held that the absence of a practising certificate is not conclusive of the question of legal professional privilege: AWB (No 5) at [44(10)]; Morton v Bolinda Publishing Pty Ltd [2017] FCA 187 at [59]. That is, the question is not determined by the presence or absence of a practising certificate, but by having regard to evidence of the relationship between the relevant parties, and the client’s belief that the lawyer was entitled to give the legal advice: Morton at [55].

84    I am satisfied, on the basis of Mr Tamvakologos’ evidence of that relationship, as demonstrated by the employment roles occupied and functions performed, that Mr Santamaria held legal qualifications and a practising certificate during the relevant period, and that he and the other named internal legal advisers were consulted by ANZ during the relevant period for the purpose of providing legal advice. Furthermore, the legal nature of the advice proffered and sought may be inferred from the form and contents of the communications in question.

Respondent’s submissions on the Documents

85    As noted above, the respondent has withdrawn its privilege claims in respect of the Documents that comprise categories one, four and eight of Amended Annexure A to the application. Consequently, the privilege claim remains to be determined in respect of Documents in categories two, three, five, six, seven and nine of Amended Annexure A.

86    The basis of the respondent’s privilege claim in respect of the Documents is identified in the Schedule in the column titled “Privilege Basis”, and is replicated in Annexure 1 to this judgment. In support of its privilege claim, the respondent led evidence from Mr Tamvakologos, and made both written and oral submissions. The respondent’s submissions are only noted below where they include additional information beyond that which is contained in the Schedule and the Tamvakologos Affidavit.

Category two: Group Investigations / EA Emails - December 2014

87    Category two comprises 33 documents. The respondent presses its privilege claim in respect of 16 of those documents.

88    In its Schedule, the respondent further categorises the remaining documents comprising category two into two exemplar chains: exemplar chains three and four. The Tamvakologos Affidavit sets out the basis for the privilege claim in respect of exemplar chain three (ABG.1900.0349.7288; ABG.1900.0349.7291) at [96(b)-(c)], and exemplar chain four (ABG.1900.0223.1448) at [96(d)].

89    In respect of exemplar chain three, in oral submissions the respondent contended that in light of the nature of the parties involved in the correspondence (namely Mr Santamaria, and ANZ’s internal and external legal advisers), the document is correspondence where legal advice is being sought and given.

90    In respect of exemplar chain four, the respondent submits that the redactions record the subject matter of work being undertaken by Clayton Utz, and that the redactions in the exemplar chain document are a “universal example” of the redactions in each of the other documents said to fall within the exemplar chain.

Category three: Standing Down Emails

91    Category three comprises 88 documents. The respondent presses its privilege claim in respect of 73 of those documents. In its Schedule, the respondent further categorises the remaining documents comprising category three into 17 exemplar chains: exemplar chains 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23 and 25.

92    Exemplar chains five (ABG.1900.0222.1580; ABG.1900.0222.1597; ABG.1900.0030.4855; ABG.1900.0222.1505), six (ABG.1900.0223.2700), seven (ABG.1900.0222.0881) and eight (ABG.1900.0223.8231) comprise confidential emails between solicitors of Clayton Utz and ANZ in relation to legal advice provided by Clayton Utz during the ASIC BBSW Investigation. Mr Tamvakologos deposes as to the basis of those privilege claims (Tamvakologos Affidavit at [97]-[105]). In relation to exemplar chain 6, the respondent drew the Court’s attention to the fact that the confidential communications attached work relating to the provision of legal advice.

93    Exemplar chain ten (ABG.1900.0223.2856) is addressed in the Tamvakologos Affidavit at [106] and [109]. Exemplar chains 11 (ABG.1900.0505.4864) and 12 (ABG.1900.0031.5006; ABG.1900.0031.4995; ABG.1900.0031.4938) are addressed in the Tamvakologos Affidavit at [110]-[116]. In oral submissions, the respondent noted that the redactions in exemplar chains 11 and 12 are related to the legal advice contained at exemplar chain 9A (ABG.1900.0307.5862).

94    Exemplar chains 13 (ABG.1900.0306.9436) and 14 (ABG.1900.0411.6097) are addressed in the Tamvakologos Affidavit at [107]-[109]. The respondent submits that the email chains involve emails between ANZ human resources staff, seeking legal advice from Mr Finger (in-house legal).

95    Exemplar chain 15 (ABG.1900.0222.1729) is addressed in the Tamvakologos Affidavit at [117]. However, whilst in the Schedule the respondent articulates its privilege basis as a request for advice from the Group General Counsel (Mr Santamaria), Mr Tamvakologos deposes that the purpose or Mr Santamaria’s email was to give legal advice to Ms Smith (ANZ). Any such distinction is immaterial to my assessment; both purposes attract the privilege claimed.

96    Exemplar chain 16 (ABG.1900.0505.4756; ABG.1900.0307.5436) is addressed in the Tamvakologos Affidavit at [118]-[121]. In addition to the privilege basis advanced in the Schedule, in oral submissions the respondent contended that the email chain records legal advice from in-house counsel in contemplation of litigation.

97    Exemplar chain 19 (ABG.1900.0411.6307; ABG.1900.0095.4396) is addressed in the Tamvakologos Affidavit at [123]-[125] and [131]-[132]. In written submissions, the respondent contends that these communications are in relation to notices issued by ASIC in its regulatory investigation.

98    Exemplar chain 20 (ABG.1900.0411.6390) is addressed in the Tamvakologos Affidavit at [126] and [131]-[132]. In addition to the privilege basis advanced in the Schedule, in oral submissions the respondent contended that the email chain records legal advice in contemplation of litigation.

99    Exemplar chains 21 (ABG.1900.0096.5839), 22 (ABG.1900.0348.8082), 23 (ABG.1900.0411.6399) and 25 (ABG.1900.0409.5605) are addressed in the Tamvakologos Affidavit at [127]-[132]. In addition to the privilege basis advanced in the Schedule, in oral submissions the respondent contended that exemplar chain 22 records legal advice in contemplation of litigation.

Category five: The 5 January 2015 AFR Article

100    Category five comprises 22 documents. The respondent presses its privilege claim in respect of 16 of those documents. In its Schedule, the respondent further categorises the remaining documents comprising category five into five exemplar chains: viz., exemplar chains 9, 30, 31, 32 and 45.

101    Exemplar chain nine (CUA.001.004.5153) is addressed in the Tamvakologos Affidavit at [104]-[105]. In oral submissions, the respondent characterised the email from Mr Mavrakis (Clayton Utz) to Mr Santamaria as “an external solicitor reporting to his client”, thereby attracting legal professional privilege.

102    Exemplar chain 30 (ABG.1900.0343.5530; ABG.1900.0202.4012; ABG.1900.0022.1144) is addressed in the Tamvakologos Affidavit at [135]-[138]. In addition to the privilege basis advanced in the Schedule, in oral submissions the respondent contended that exemplar chain 30 concerns legal advice sought in contemplation of litigation.

103    Exemplar chains 31 (ABG.1900.0144.7774), 32 (ABG.1900.0041.9072) and 45 (ABG.1900.0837.4058) are addressed in the Tamvakologos Affidavit at [139], [140] and [150], respectively. In addition to the privilege basis advanced in the Schedule, in oral submissions the respondent contended that chain 45 concerns legal advice in contemplation of litigation.

Category six: Chats Schedule and Code of Conduct Review

104    Category six comprises ten documents. The respondent presses its privilege claim in respect of eight of those documents. In its Schedule, the respondent further categorises the remaining documents comprising category six into seven exemplar chains: viz., exemplar chains 36 to 42.

105    Exemplar chains 36 (ABG.1900.0216.2760) and 37 (ABG.1900.0219.1971) are addressed in the Tamvakologos Affidavit at [141] and [142] respectively. In oral submissions, the respondent submits that exemplar chain 37 and its attachments are a “Propend claim”, in the sense that they constitute copies of material created for, and provided to, Clayton Utz for advice, and on which the advice is based: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.

106    Exemplar chains 38 (ABG.1900.0219.7994), 39 (ABG.1900.0301.6556), 40 (ABG.1900.0368.5206), 41 (ABG.1900.0405.0308) and 42 (ABG.1900.0350.4795) are addressed in the Tamvakologos Affidavit at [143]-[147]. In oral submissions, the respondent contended that exemplar chain 41 demonstrates that legal proceedings were in contemplation by Mr Santamaria at the time of the relevant communication.

Category seven: Board Reports and Minutes

107    Category seven comprises two documents, in respect of which the respondent maintains its claim of privilege. In its Schedule, the respondent further categorises the documents comprising category seven into two exemplar chains: viz., exemplar chains 43 and 44.

108    Exemplar chains 43 (ABG.1900.0951.4772) and 44 (ABG.1900.0350.2202) are addressed in the Tamvakologos Affidavit at [148]-[149]. In addition to the privilege basis advanced in the Schedule, in oral submissions the respondent contended that, in relation to both exemplar chain 43 and 44, the prospect of litigation was in contemplation at the time of the relevant communications.

Category nine: External Communications Documents

109    Category nine comprises ten documents, which were included (additionally) by way of the applicant’s amended interlocutory application, and in respect of which the respondent presses its privilege claims. In its Schedule, the respondent further categorises the documents comprising category nine into four exemplar chains: viz., exemplar chains 9A, 18A, 19 and 21. Exemplar chains 19 and 21 are addressed above.

110    Exemplar chains 9A (ABG.1900.0307.5862) and 18A (ABG.1900.0094.8195) are not included in the Tamvakologos Affidavit. However, the privilege basis is set out in the respondent’s Schedule. In oral submissions, the respondent explained that exemplar chain 18A comprises email correspondence from Mr Mavrakis (Clayton Utz) to a Queen’s Counsel, which was subsequently circulated by Mr Santamaria to various people.

Consideration

111    On the basis of the evidence and submissions of the respondent, and upon inspection of the Documents, I have determined to uphold the privilege claimed in respect of each of the Documents, on the basis propounded by the respondent, and, in some cases, on an additional basis, which I have inferred from the form and content of the communications. Those individual findings are set out in Annexure 1 to this judgment.

112    As indicated above, Annexure 1 largely replicates the structure of Amended Annexure A to the application, with the following exceptions:

(1)    The column titled “Privileged Basis” identifies the basis of privilege asserted in relation to the relevant document as set out by the respondent in its Schedule (MFI#2). If a privilege claim was withdrawn, the privilege basis is marked “N/A”.

(2)    The column titled “Waiver Position” identifies the waiver position in relation to the relevant document as set out by the respondent in its Schedule (MFI#2). If a privilege claim was withdrawn, or if no waiver position was articulated in the Schedule, the wavier position is marked “N/A”.

(3)    The column titled “Determination” records the determination on privilege (and waiver).

WAIVER

113    The applicant contended that, in the event that the Court upholds the respondent’s claim of privilege in relation to the Documents, the respondent has impliedly waived privilege over certain Documents.

The evidence in issue

114    The applicant alleges that waiver of privilege arises from the service of four affidavits: viz., the affidavit of Shayne Hamilton Collins sworn on 20 November 2023 (Collins Affidavit); the affidavit of Andrew William Géczy sworn on 16 November 2023 (Géczy Affidavit); the affidavit of Paul George Talbot Edwards affirmed on 19 May 2025 (Edwards Affidavit); and the affidavit of Richard Bartholomew Santamaria sworn on 17 November 2023 (Santamaria Affidavit).

115    At the time of the application, the affidavits had not been read into evidence in the substantive proceeding. However, the respondent did not take issue with the proposition that service of an affidavit is an act capable of waiver: Mastercard Asia/Pacific (Australia) Pty Ltd v Australian Competition and Consumer Commission (2026) 315 FCR 256 at [3] (Mastercard (appeal)).

Legal principles

116    It is common ground between the parties that the party alleging waiver of legal professional privilege carries the onus of establishing the waiver: Rich v Harrington (2007) 245 ALR 106 at [8].

117    Waiver may be express or implied: Mann at [29]. In the case of implied waiver, the ultimate question is whether the privilege holder has engaged in conduct which is inconsistent with the maintenance of the confidentiality that attaches to a privileged communication: Mann at [29]. 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: Mann at [29].

118    This is a fact-sensitive inquiry, where the focus is on the particular conduct of the client: Mastercard (appeal) at [43]. Inconsistent conduct may take many forms, not limited to express or implied assertions about the content of privileged communications: Mastercard (appeal) at [37].

119    An inconsistency may arise, and privilege waived, even where a party does not have the subjective intention to waive privilege: Mann at [29].

120    As observed by the Full Court in Mastercard (appeal), Mann “does not categorise or limit the types of cases where inconsistency informed by considerations of fairness will arise”, and as each case turns on its own particular facts, there is limited utility in reasoning by analogy: at [44], citing Goldberg v Ng (1995) 185 CLR 83 at 95 (Deane, Dawson and Gaudron JJ); see also Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 at [47].

121    It is not in contest that waiver may arise where the privilege holder makes an express or implied assertion which is either about the contents of the confidential communication, or which necessarily lays open the confidential communication to scrutiny: Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (No 3) [2025] FCA 1043 at [17]; DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [58]; Rio Tinto at [52], [61].

122    However, the applicant submits that it is not the case that inconsistency of the kind required by Mann v Carnell can only arise where there is an express or implied assertion about the contents of a privileged communication: Mastercard at [19]; Mastercard (appeal) at [66]. This is disputed by the respondent.

123    At the time of hearing the application, the parties did not have the benefit of the Full Court’s decision in Mastercard (appeal), which ultimately vindicates the applicant’s position on this question.

Applicant’s submissions on legal principle

124    The crux of the applicant’s argument is that waiver may arise where a party makes an express or implied assertion about an issue, in circumstances where there is a basis to believe that legal advice would have been sought on that issue, relying primarily on Mastercard and Grocon Group Holdings Pty Ltd v Infrastructure NSW (No. 2) [2023] NSWSC 1144. The applicant contends that this proposition is reflected in Wigney J’s decision in Mastercard (at [21]):

The conduct of a privilege holder may be inconsistent with the maintenance of the confidentiality of a privileged communication if the privilege holder gives evidence on the same issue as the privileged communication. For example, it may be inconsistent for a privilege holder to give evidence to the effect that they were unaware of a particular fact, or that they were not told about a particular fact, or that they had a particular understanding relating to that fact, but nevertheless maintain that legal advice he or she sought or received about that fact, or which referred to that fact, remained confidential: see Grocon at [13], [33] and [37]; GR Capital at [59].

(emphasis added)

125    There was no contest that the ultimate test, as set out in Mann v Carnell, is one of inconsistency; and that “mere relevance” of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency: Grocon at [11], citing GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 at [57] (Macfarlan JA).

126    In Mastercard, it was contended that Mastercard had waived privilege in respect of certain (otherwise privileged) communications by serving and filing affidavit evidence led from two senior officers, Mr Koh and Mr Molu: at [22]. The applicant took the Court through excerpts of Mr Koh’s affidavit (as set out in the judgment at [37]-[39]), and to his Honour’s conclusion regarding Mr Koh’s evidence at [40]:

As can readily be seen, the effect of that evidence is that nobody had told Mr Koh that the purpose of the [strategic merchant agreements (SMAs)] “strategy”, and the SMAs themselves, was, to use Mr Koh’s words, “to prevent or discourage merchants from routing debit transactions through eftpos”. In saying that, Mr Koh is effectively asserting, either expressly or impliedly, that none of the communications he received recorded or adverted to the fact that that was the purpose of the SMA strategy or the SMAs.

127    This led to his Honour’s conclusion that the relevant statements by Mr Koh in his affidavit “amount to express or implied assertions about the contents of his communications with other Mastercard officers, including in-house counsel, in respect of the SMAs”, and that it would be inconsistent for Mr Koh to make such assertions, and “at the same time to maintain that otherwise privileged communications sent or received by Mr Koh that addressed the subject-matter of those assertions remained confidential”: at [54]. This was notwithstanding that Mr Koh’s evidence did not expressly refer to the existence, or explicitly disclose the contents of, legal advice: at [60]; see also [75] (in respect of Mr Molu’s evidence).

128    In upholding Wigney J’s decision, the Full Court in Mastercard (appeal) stated that “[t]he inconsistency principle is capable of application to a case, such as the present, where the privilege holder puts in issue a subject-matter by making positive assertions whilst maintaining that communications on the subject-matter remain confidential”: Mastercard (appeal) at [66].

129    The applicant took the Court to Grocon, in which it was alleged that privilege had been waived by reason of certain statements made in affidavit evidence by Grocon’s Chief Executive Officer (Mr Grollo) and in-house General Counsel (Mr Easy) (at [32] and [35]). In the substantive dispute, the plaintiff claimed inter alia misleading and deceptive conduct in relation to the effect of certain contractual clauses (at [4]-[9]). Relevantly, Mr Easy deposed as to what Grocon could and would have done had the effect of the impugned clause been disclosed, and as to his subjective belief (at [35]-[36]). Justice Ball concluded that there was an implied waiver (at [37]):

In my opinion, by giving the evidence of the views he has formed on particular matters, Mr Easy has waived privilege in any communication that records his views on those matters. It does not matter that Mr Easy may not be understood as making an express or implied assertion about the existence or content of legal advice. What is inconsistent is for Mr Easy both to express a view on a particular matter (such as what view someone formed, what someone needed to know or would do, whether one transaction was more favourable than another, whether a particular event was likely and the meaning or effect of a particular contract or contractual right or obligation) and to assert that communications recording his views on those matters remain confidential. The fact that the relevant communications may have consisted of legal advice or were made for the purpose of Grocon obtaining legal advice does not alter the position.

130    The applicant submitted that Grocon demonstrates that if a party makes an express or implied assertion about an issue which is presumed to be the subject of legal advice (that is, in circumstances where it is likely that advice was given), waiver is established, even in the absence of any reference directly or indirectly to such legal advice.

131    The applicant extracts this (general) principle from the reasoning in Grocon. In that regard, it is accurate to say that waiver “may” be established in such circumstances: see Mastercard at [21]. Whether it is established will depend on a fact-specific enquiry.

132    In Mastercard (appeal), the Full Court found that the primary judge was correct to accept that there was an implied waiver by reasoning similarly to the approach in Grocon (at [66]), and observed that Grocon is illustrative of the application of the fact-specific evaluative assessment necessary to reach a conclusion within the inconsistency analysis required by Mann v Carnell (at [65]).

133    The applicant submits that in GR Capital, there was no particular evidence before the Court of any legal advice. However, as expressed in the reasons of Macfarlan JA, it could be inferred from the circumstances that such advice had been given (at [59]):

The consent was proffered by the Judgment Debtors on the first day of an expedited final hearing of the proceedings in which the Judgment Debtors’ pleadings were, it can be presumed, drawn and settled by the Judgment Debtors’ lawyers. A reasonable bystander would in my view regard it as inconsistent for the Judgment Debtors to assert on that day and at that time they were ignorant of the possibility of an illegality defence and at the same time claim to be entitled to keep to themselves what, if anything, their lawyers who were then acting for them and conveying their consent to the Court had told them about the possibility of such a defence. Implicitly, they were “laying that advice out for scrutiny”.

134    The applicant pointed to Grocon and Mastercard as authority for the proposition that waiver may be found in respect of a generic suite of documents. The applicant noted Ball J’s criticism (in Grocon at [29]) of the Full Court’s approach in Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117, insofar as the approach depended on the description of the documents in respect of which privilege was claimed, and his Honour’s preference for the approach taken by the Court of Appeal in GR Capital, relevantly stating (Grocon at [30]):

Where the inconsistency is said to arise from the subject matter of the communication in respect of which privilege is claimed, it seems to me appropriate not to start with the communications but with the basis on which the inconsistency in said to arise. If the court is satisfied that it would be inconsistent for a privilege holder both to make a particular allegation or give evidence of a particular matter and claim privilege over legal advice concerning the same subject-matter, then it should tailor the order for production by reference to that subject-matter, leaving it to the privilege holder to produce any documents falling within that description. It should not start with the document over which privilege is claimed and its description. The former approach was the one taken by the Court of Appeal in GR Capital, and I should follow it.

Respondent’s submissions on legal principle

135    The respondent submits that the mere fact that legal advice was taken, or relied upon, is not sufficient to give rise to a relevant inconsistency; rather, it is an express or implied assertation about the contents of the privileged communications that is essential: Rio Tinto at [67], [68], [73]. As stated by the Full Court in Rio Tinto (at [52]):

These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.

136    While the respondent acknowledged that there is a tension between the principles stated in Rio Tinto and more recent authorities such as Mastercard, the respondent submitted that the correctness of Rio Tinto has not been challenged.

137    The respondent also relied on the Full Court’s decision in Arup, which held that the fact that the cross-claim put in issue the respondent’s state of mind, and the privileged documents might be relevant to that state of mind, that fact alone did not result in waiver: at [37]. The Full Court indicated (at [28]) that the “correct approach” was that described by Yates J in Ferella v Official Trustee in Bankruptcy (2010) 188 FCR 68 (at [65]):

However the question is not simply whether the holder of the privilege has put that person’s state of mind in issue but whether that person has directly or indirectly put the contents of the otherwise privileged communication in issue: see [Rio Tinto] at [65]. Indeed, even the fact that the holder of the privilege makes clear that the advice was relevant or contributed to a particular course of conduct would not be sufficient to waive the privilege unless, possibly, the contents of the legal advice (and not merely the fact of the advice) are specifically put in issue by relying on the contents of the advice to vindicate a claimed state of mind: [Rio Tinto] at [67].

138    In considering Arup, the Full Court in Mastercard (appeal) stated that “[t]here is nothing in the reasons of the Court that confines the application of the principle to assertions about the content of communications” (at [52]). Similarly, the Full Court observed (at [51]) that Yates J in Ferella was not concerned to examine how the Mann v Carnell principle operated in other circumstances, noting that Ferella was concerned with the pleading of a defence which it was said exposed to scrutiny any legal advice received by the respondent relevant to a question in issue.

139    Whilst the respondent did not contend that Grocon is necessarily inconsistent with Rio Tinto and Arup, to the extent that there are any inconsistencies, the respondent submits that Grocon should not be followed. The respondent takes issue with Ball J’s conclusion in Grocon (at [37]) that by giving evidence of the views he has formed on particular matters, Mr Easy waived privilege in any communication that records his views on those matters. The respondent contends that this equates the question of relevance with that of inconsistency, which is contrary to established principles.

140    The respondent submits that the finding of implied waiver in Mastercard was fundamentally driven by express references to legal advice in each of Mr Koh and Mr Molu’s affidavits. This impetus is borne out in the reasons of Wigney J (at [54]):

In my view, the broad assertions by Mr Koh in his affidavit to which reference has been made amount to express or implied assertions about the contents of his communications with other Mastercard officers, including in-house counsel, in respect of the SMAs.

141    Most recently, the Full Court in Mastercard (appeal) affirmed a fact-specific evaluative exercise, unconstrained by exclusive or exhaustive “types” of cases, in which the focus of the inquiry is on inconsistency. The Court observed that “[r]easoning only by reference to cases which have found waiver in the making of implied assertions about the content of otherwise privileged communications deflects from the inconsistency principle and is likely to lead to error” (at [65]).

142    In the present case, certain affidavit evidence is alleged to be inconsistent with the maintenance of privilege over (otherwise privileged) unidentified communications. In examining the alleged inconsistency, the question is not limited to whether the respondent’s evidence has directly or indirectly put the contents of the otherwise privileged communications in issue: Mastercard (appeal) at [66].

Application of legal principles

143    The applicant submits that the focus of its claim of waiver is on specific key decisions impugned in the pleadings: the standing down of the applicant; the issuing of the Press Release; the commencement of disciplinary action against the applicant; and the termination of the applicant’s employment.

144    The applicant identifies four sub-categories of documents in respect of which it is alleged that the respondent waived privilege, by reason of evidence led in the witness statements of Messrs Collins, Géczy, Edwards and Santamaria:

(1)    Communications concerning Mr Collins’ reasons for categorising the applicant “red”.

(2)    Communications concerning Mr Géczy’s reasons for: (i) categorising the applicant “red”; (ii) standing down the applicant; and (iii) issuing the Press Release.

(3)    Communications concerning the preparation of the Press Release and Mr Edwards’ understanding of its purpose.

(4)    Communications concerning Mr Santamaria’s understanding of the reasons that adverse actions were (allegedly) taken against the applicant.

145    The scope of the alleged waiver is said by the applicant to encompass communications to or from either of Messrs Santamaria, Edwards, Collins or Géczy, or information which they had, in relation to the reasons for which the impugned decisions were made.

146    The applicant contends that an inference is available that legal advice was given in relation to the processes that led to the making of the key decisions. This is on the basis that Mr Santamaria was in charge of Project Arrow (and was assisted by other employees in legal roles), and that Clayton Utz was engaged to provide legal advice to the respondent (in relation to the response to Project Arrow; the decision to conduct a disciplinary investigation; and the decision to terminate the applicant’s employment).

147    The respondent disputes the claim of waiver on the basis that none of the four witness statements contains express or implied assertions about the content of privileged communications, and only one (the Collins Affidavit) refers to such advice. As much may be accepted. As explained above, the making of such assertions is not the basis upon which the applicant prosecutes its claim.

Section 361(1) of the Fair Work Act

148    The respondent submits that the Court ought to have regard to the statutory context of the Fair Work Act in assessing waiver. The respondent contends that s 361(1) of the Fair Work Act creates a reverse onus and presumed result against the employer, unless specific evidence is led.

149    Section 361 relevantly provides:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

…

150    Consequently, for the respondent to successfully resist an application in relation to an alleged contravention of Part 3-1 of the Fair Work Act, it cannot merely deny the applicant’s allegation that action was taken for a particular reason or with a particular intent; rather, it is required to “[prove] otherwise”. To do so, the respondent contends that it must call the persons who contributed to the relevant decision: Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34 at [202]. The respondent submits that, whilst not determinative, the operation of s 361 is contextually relevant to the assessment of inconsistency in the present case.

151    The rationale underlying s 361 is that the onus should be placed on the employer to prove that which lies peculiarly within his or her own knowledge: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [49]-[51] (French CJ and Crennan J). In that regard, the employer can lead evidence as to their reasoning in arriving at the relevant decision. The applicant argues that, while s 361 creates a reverse onus, it does not stipulate the extent of the evidence to be led by an employer: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [27] (Jessup J).

152    The applicant submits that it would be contrary to the policy behind the ‘reverse onus’ to permit employers to cloak the reasons for their decision in privilege. The applicant cited Mann v Carnell to submit that fairness between the parties (at [29]) should inform the Court’s assessment of inconsistency, including the relevant statutory regime which requires employers to provide evidence of their reasons for taking an action.

153    It is to be recalled that, while the question of inconsistency is informed by considerations of fairness, the Court in Mann v Carnell was referring (at [29]) to fairness between the conduct of the client and maintenance of confidentiality; “not some overriding principle of fairness operating at large”.

154    The operation of s 361 is relevant to an assessment of the conduct of the respondent’s case. I accept that the provision calls upon the respondent to disclaim any contravening reason (or intent underlying) for action taken against the applicant. It requires the respondent to ‘prove otherwise’: i.e., to prove that the reasons for the action taken against the applicant are other than those asserted by the applicant. As such, it is not necessarily to the advantage of the employer to “cloak” its reasons in privilege. After all, the presumption in s 361 must be rebutted with proof.

155    Nevertheless, while the ‘reverse onus’ in s 361 may inform the respondent’s conduct, it does not compel evidence that is inconsistent with the maintenance of privilege, nor does it absolve any such inconsistency. The maintenance of privilege remains within the purview of the respondent, although they may be walking a fine line.

Santamaria Affidavit

156    Mr Santamaria deposes that he was not a decision-maker in relation to any of the impugned decisions. Consequently, the applicant contends that he was not compelled to put on evidence by virtue of s 361(1) of the Fair Work Act.

157    The applicant takes issue with paragraph [35] of the Santamaria Affidavit, which states:

There was no action against the Applicant that was, to my knowledge, motivated by any complaints or disclosures he asserts that he made to ANZ or ASIC.

158    The applicant contends that this evidence goes beyond a denial that impugned actions were taken to cause the applicant harm, and amounts to a positive assertion. Citing Grocon for the proposition that if a person professes ignorance, they may be taken to have impliedly asserted that no one told them about such a matter (at [18]), the applicant submits that Mr Santamaria should be understood as implicitly saying that none of the decision-makers at ANZ ever told him that the decisions were made for the reasons alleged by the applicant. However, the applicant acknowledged that Mr Santamaria’s evidence does not go as far as Mr Koh’s evidence in Mastercard (in which Mr Koh expressly asserted that no one had ever told him of the relevant matters: at [39]-[40]). Further, the applicant submits that ANZ’s discovery confirms that Mr Santamaria was involved in, and received communications about, certain of the impugned decisions (viz., the standing down decision, the decision to issue the Press Release, and the decision to terminate the applicant’s employment).

159    The respondent disputes the applicant’s characterisation of Mr Santamaria’s evidence and contends that, properly read, Mr Santamaria’s statement (at [35]) goes to his state of knowledge and is not a reference to any particular decision or privileged communication. Further, the respondent submits that Mr Santamaria does not give evidence as to factors on which he relied to form the relevant state of mind, which distinguishes the present case from Mastercard.

160    The respondent contends that if there were a waiver, it could only be to the extent that there might be legal advice that bears on the issue of whether the alleged complaints or disclosures made by the applicant to ASIC or ANZ were motivation for the action or proposed action against the applicant.

Conclusion

161    Mr Santamaria’s evidence at paragraph [35] does not put the contents of any particular communication in issue. The question (more broadly) is whether the evidence is inconsistent with the maintenance of the confidentiality that attaches to any privileged communication. In my view, it is not.

162    Paragraph [35] of the Santamaria Affidavit is a statement about the extent of Mr Santamaria’s knowledge of decisions relating to the applicant’s employment. This is consistent with the tenor of paragraphs [34] and [36]. It is not a positive assertion about the motivation underlying any action taken against the applicant. Nor it is a denial of any particular motivation.

163    It is a statement of ignorance as to an asserted fact, the utility of which is explained by reference to the ‘reverse onus’ in s 361(1) of the Fair Work Act and Mr Santamaria’s potential contribution to, or influence on, decision-making. Mr Santamaria does not advert to any particular communication or meeting as the basis of the statement. Mr Santamaria states (at para [34]) that the applicant did not make any complaints or disclosures to him, other than the matter the applicant allegedly raised at the meeting Mr Santamaria attended on 23 February 2015. Mr Santamaria provides a summary of what was discussed at that meeting.

164    Mr Santamaria refers to another meeting on 25 June 2015 as part of the “Code of Conduct Review” (i.e., a review into employee compliance with the ANZ Code of Conduct and Ethics), at which the applicant was present. Mr Santamaria provides a summary of what was discussed at that meeting, which was prepared after the meeting, and which has been redacted to remove an email that is said to be subject to legal professional privilege. Mr Santamaria states thereafter that he did not make, nor have any input into, the decision to terminate the applicant’s employment.

165    In that regard, the statement at paragraph [35] does not have the complexion painted by the applicant, viz., that of a broad assertion that nobody told Mr Santamaria, and he did not tell anybody else, that any of the actions referred to in the Santamaria Affidavit at paragraph [36] had as their purpose responding to the applicant’s complaints. While, on the one hand, it is possible to read a statement of ignorance broadly and reductively in that way, that is not the “gist” of Mr Santamaria’s evidence in context, which is to limit the boundaries of his involvement in the action taken against the applicant.

166    Paragraph [36] of the Santamaria affidavit outlines the decisions that Mr Santamaria did not make. He does not assert any other knowledge of, or involvement in, those decisions. As such, paragraph [35] is not a positive assertion as to what was (or was not) said or done in relation to the decisions that are the subject of paragraph [36] (cf. Grocon at [18], [33]; Mastercard at [39]-[40], [52], [65]). In that regard, Mr Santamaria’s evidence does not lay out for scrutiny any privileged communication he may have received, or been a party to, that bears on the question of whether action taken against the applicant was motivated by complaints or disclosures allegedly made to ANZ or ASIC.

167    This may be as close as Mr Santamaria gets to denying the asserted fact, in order to meet the respondent’s onus, while at the same time not implicating the basis of his denial. In my view, it would be “forensically unfair” for the respondent to forgo privilege for meeting its onus in this way. I do not accept that any unfairness is visited upon the applicant in this regard, by shielding communications from scrutiny. That may be the case if the onus were not reversed.

168    I do not accept the applicant’s submission that I should infer from the circumstances that such advice was given (I am not sure how I should infer that the advice was “likely”). In the circumstances of Mr Santamaria’s employment role, this may give rise to a standing presumption. The applicant did not contend for such a presumption. Rather, the applicant focused on periods leading up to key actions that are impugned in the pleadings, e.g., the standing down of the applicant. In that regard, the applicant relied on the involvement of lawyers as a sufficient basis for the inference sought, although this is in tension with the submission that Mr Santamaria did not always act in a legal capacity.

169    For the purposes of waiver, what is missing in the present case (which was present in GR Capital) is the connection between the statement that is said to waive privilege and the particular advice that is presumed to have been given (or sought). The inference drawn in GR Capital at paragraph [59], on which the applicant relied, arose from particular circumstances of a consent to judgment proffered “on the first day of an expedited final hearing of the proceedings in which the Judgment Debtors’ pleadings were, it can be presumed, drawn and settled by the Judgment Debtors’ lawyers”. The inference drawn in Mastercard was based on an express recollection of specific discussions with the interlocutors, in the context of evidence that communications to which the interlocutors were a party contained legal advice or were made for the dominant purpose of obtaining legal advice (at [65]-[68]). The inference sought to be drawn in the present case does not have such an evidentiary foundation.

Collins Affidavit

170    Mr Collins deposes that he was employed by the respondent from April 2006 until 31 July 2023. Relevantly, from April 2012 until February 2016, Mr Collins was the Group General Manager of Markets Risk. Mr Collins deposes that he was responsible for developing a set of criteria to be used to categorise employees initially for the purpose of deciding remuneration impacts for employees within the scope of the ASIC BBSW Investigation and Project Arrow.

171    Mr Collins deposes that he was responsible for the initial decision to categorise the applicant as “red”, which denotes those employees who either had been identified by ASIC as being relevant in the ASIC BBSW Investigation or who ANZ considered were potentially of interest to ASIC based on their role and participation in multiple chats, emails and phone calls/transcripts (categorisation decision). Mr Collins denies that the decision was made “because of the complaints and disclosures allegedly made by Etienne during his employment” (Collins Affidavit at [46]). Mr Collins deposes that he presented his classification criteria and recommendations for the classification of each employee to stakeholders within ANZ, including Messrs Géczy and Santamaria. However, as Mr Collins deposes that Mr Géczy was the “final decision-maker” (at [48]), the applicant contends that the evidence led by Mr Collins was not compelled evidence.

172    The applicant contends that the effect of Mr Collins’ evidence is to assert, either expressly or impliedly, that none of the communications he sent or received recorded that the categorisation decision was made for the reasons alleged by the applicant. The applicant submits that the categorisation decision is inherently likely to have been the subject of legal advice, and that the respondent’s discovery demonstrates that Mr Collins had communications about the development of the criteria and the categorisation of the employees with internal and external legal advisors.

173    The respondent disputes this characterisation of Mr Collins’ evidence. While the respondent acknowledges that Mr Collins attended a meeting with stakeholders within ANZ, the respondent submits that this does not give rise to any inconsistency in circumstances where Mr Collins has made no overt statement that he took legal advice in reaching the categorisation decision. The respondent contends that speculation as to the inherent likelihood of legal advice is an inadequate means of discharging the onus the applicant bears to demonstrate waiver.

174    If there were a waiver arising from Mr Collins’ statements at [45], the respondent contends that it would be limited in scope to privileged communication recording Mr Collins’ reasons for classifying the applicant in the “red” category. Similarly, any waiver arising from Mr Collins’ statements at [46] would be limited in scope to privileged communications recording the making of the decision to categorise the applicant “red” by reason of the complaints or disclosures made by the applicant.

Conclusion

175    There is no suggestion in the affidavit that Mr Collins sought or obtained legal advice in relation to the development of criteria to be used to categorise employees, or in reaching the (initial) categorisation decision in relation to the applicant. The basis of the decision is said to be the matters that Mr Collins took into account, which are at paragraph [45] of his statement.

176    Mr Collins denies that he made this initial assessment because of the complaints and disclosures allegedly made by the applicant during his employment (para [46]). That is a purported rebuttal of the presumption in s 361(1) of the Fair Work Act.

177    While Mr Collins attests to a meeting at which he presented his criteria and recommendations for the appropriate categorisation of each employee (para [47]), which was attended by Mr Santamaria as Group General Counsel, the meeting proceeds his decision and precedes the final decision made by Mr Géczy (para [48]). Furthermore, Mr Collins does not describe the meeting as one in which the individual circumstances of the applicant were discussed. Mr Collins attests further that he did not have any other discussions with Mr Géczy in relation to the categorisation of employees (para [49]).

178    I do not accept that this “initial assessment of the appropriate categorisation of each employee” is, as the applicant submits, “inherently likely” to have been the subject of legal advice (both as to whether the decision should be taken and whether it was being taken for a legitimate purpose). The submission assumes that Mr Collins made the final decision, which he did not. He describes his role as presenting his criteria and recommendations to other ANZ employees. Even so, the applicant’s submission is in the nature of an assumption. This is to be distinguished from an “expectation” of legal advice in relation to a document that outlines legal rights and obligations: cf. Grocon at [33].

179    I do not accept that “[t]he effect of Mr Collins’ evidence is to assert, either expressly or impliedly, that none of the communications he sent or received recorded that: (i) another person was responsible for categorizing the Applicant as “red”; or (ii) in making that decision, Mr Collins was motivated by the Applicant’s complaints and disclosures.” The applicant appears to invite the Court to draw an implication from the evidence, in circumstances where there is no express advertence to any communication, and the implication sought to be drawn is not a necessary consequence or corollary of Mr Collins’ denial at paragraph [46]. Once again, it is significant that the utility of the denial is found in meeting the ‘reverse onus’ in s 361(1) of the Fair Work Act.

180    Accordingly, I do not consider that Mr Collins’ evidence is inconsistent with the maintenance of the confidentiality that attaches to any privileged communication.

Géczy Affidavit

181    Mr Géczy deposes that he was employed by the respondent from September 2013 until January 2016 as the Chief Executive Officer of International and Institutional Banking, and that he was a member of an oversight group of Project Arrow. Mr Géczy deposes, relevantly, that he was responsible for making the decisions to: (i) provisionally award the applicant’s remuneration; (ii) stand the applicant down; and (iii) approve the issue of the Press Release.

182    Mr Géczy provides reasons for those decisions, and denies that the decisions were made “because of complaints and disclosures allegedly made by Etienne during his employment”. Mr Géczy deposes that he consulted with others in making the impugned decisions, but that they did not participate in the decision-making process (Géczy Affidavit at [11]):

I was responsible for making certain decisions in the context of the ASIC BBSW Investigation and the ANZ BBSW Investigation, including the decision to stand down Etienne and others from their employment, and award remuneration outcomes to Etienne and others on a provisional basis only, as I describe below. I consulted with other individuals within ANZ and notified them of my proposed course of action when making these decisions, but they did not make either decision or participate in the decision-making.

183    The applicant submits that in circumstances where Mr Géczy was party to a large number of communications regarding the decisions (including communications with internal and external legal advisors, as indicated in discovery), his evidence should be taken as implicitly saying that none of those communications records that the actions were taken for the reasons alleged by the applicant. The respondent disagrees with this characterisation and does not accept that the reference to consulting with other individuals gives rise to any inconsistency.

184    As noted above, if waiver is found, the respondent contends that the scope would be limited. For instance, the respondent submits that:

(1)    a waiver in respect of the reference to consulting with other individuals would be limited to any privileged document which constitutes the consultation, or refers to the fact of it;

(2)    a waiver in respect of the standing down decision would be limited to any privileged document recording or referring to the reasons for the determination of the standing down decision by Mr Géczy; and

(3)    a waiver in respect of the Press Release would be limited to Mr Géczy’s approval of the Press Release.

Conclusion

185    Mr Géczy’s evidence purports to be a rebuttal of the presumption in s 361(1) of the Fair Work Act. I do not accept the applicant’s characterisation of the evidence as implicitly saying that none of the communications to which Mr Géczy was a party records that the actions were taken for the reasons alleged by the applicant. Mr Géczy makes no express or implicit reference to any communication in denying that there were other reasons for which he made the decisions for which he was responsible. The fact that Mr Géczy consulted with other individuals within ANZ and notified them of his proposed course of action when making the decisions, is not sufficient for this purpose. He does not rely on these consultations to buttress his evidence; i.e., to impliedly assert that those consultations vindicate his given reasons for making the decisions. Mr Géczy makes clear that those with whom he consulted did not participate in the decision-making. As with Mr Collins’ evidence, the applicant’s characterisation of Mr Gézcy’s evidence is an overstatement.

186    Accordingly, I do not consider that Mr Gézcy’s evidence is inconsistent with the maintenance of the confidentiality that attaches to any privileged communication.

Edwards Affidavit

187    Mr Edwards deposes that he was employed by the respondent as the Group General Manager of Corporate Communications from November 2005 until December 2017. Mr Edwards deposes that he was responsible for preparing a draft of the Press Release (at [11]) and that he did not decide on the contents and drafting of the Press Release because the applicant made one or more complaints or disclosures during his employment (of which he was not aware at the time of preparing the Press Release) (at [13]).

188    He gives evidence as to his understanding of the purpose of the Press Release (at [15]-[16]):

15.    Further, at the time of preparing the Media Release, I did not understand or believe that its purpose was:

(a)    to make the Applicant (or any of the stood down employees) a scapegoat in relation to the ASIC BBSW Investigation;

(b)    to discourage the Applicant (or any of the stood down employees) from assisting ASIC with its investigation; or

(c)    to damage the Applicant (or any of the stood down employees) or discredit them as a potential witness in any legal proceedings brought by ASIC against ANZ arising out of the ASIC BBSW Investigation.

16.    Rather, in consulting with Mr Geczy, Mr Santamaria and Mr Williams during the preparation of the Media Release, I understood that the purpose of the Media Release was to ensure that any reputational impacts to ANZ of the decision to stand employees down were appropriately managed, and to publicly assure ASIC and other stakeholders that ANZ was responding to the matters that were the subject of investigation.

189    The applicant contends that Mr Edwards must be taken to be saying that none of Mr Géczy, Mr Santamaria or Mr Williams, or anyone else who he consulted with, told him that the purpose of the Press Release was for any of the reasons alleged by the applicant (at para [220] of the third further amended statement of claim). In the applicant’s submission, this is an express or implied assertion as to the contents of privileged communications. The applicant contends that the respondent’s discovery confirms that Mr Edwards consulted with others (including external and internal legal advisers) when preparing the Press Release. (The applicant makes a similar claim regarding discovery in relation to the involvement in, and receipt of, communications by Messrs Santamaria, Collins and Gézcy.)

190    The applicant contends that ANZ has chosen to put on evidence in respect of the issuing of the Press Release without any legal onus upon them to do so (cf. s 361 of the Fair Work Act in relation to employment action taken against the applicant).

191    The respondent submits that the applicant’s characterisation of Mr Edwards evidence is overly broad, and the mere receipt of advice, without more, does not put that advice in issue or make it part of the “purpose” to which he deposes. The respondent emphasises that Mr Edwards does not directly refer to being given any legal advice.

192    The respondent contends that, in any event, any inconsistency could extend no further than documents that Mr Edwards had or referred to in the preparation of the Press Release; or which refer to or record the process of consultation referred to in the affidavit.

Conclusion

193    I do not accept the applicant’s characterisation of Mr Edwards’ evidence as an express or implied assertion about the communications he sent or received (save for one matter identified below).

194    In relation to the preparation of the Press Release, Mr Edwards cannot recall who asked him to prepare a draft of the Press Release, but believes it was Mr Santamaria or Mr Gaudion because the press release “concerned a legal matter”. He does not identify the matter.

195    While the Press Release is not pleaded directly to constitute an “adverse action” under the Fair Work Act, the premises of one such pleading in relation to the “ANZ Media Comment” (para [327A]) implicates the Press Release (paras [218]-[220] of the third further amended statement of claim). Accordingly, insofar as he was responsible for preparing a draft of the Press Release, Mr Edwards’ denial at paragraph [13] may have utility in rebutting the presumption in s 361 of the Fair Work Act.

196    Mr Edwards received a briefing about the subject-matter of the Press Release from Mr Santamaria and Mr Gaudion. He recalls that the need to maintain the confidentiality of the names of the employees who were stood down was part of the briefing. He does not otherwise identify the content of the briefing. I do not consider that Mr Edwards lays open for scrutiny otherwise privileged communications (i.e., on other subject-matters) by reason of that disclosure.

197    Furthermore, Mr Edwards’ understanding of, or belief as to, a purpose does not identify the content of those consultations. Mr Edwards reached a view “in consulting with” various persons, but he does not identify the basis of his view, aside from the occasion. He does not say what was said, only what he understood, and the latter does not necessarily correspond with the former. In those circumstances, I do not accept the applicant’s submission that Mr Edwards is making an express or implied assertion about the contents of communications to which Mr Edwards was a party that might otherwise be privileged. Accordingly, it is not otherwise inconsistent for Mr Edwards to maintain confidentiality in relation to those communications.

198    In its pleading, the applicant infers the purpose of the Press Release of 19 November 2014 from ANZ’s knowledge of certain matters, including the applicant’s complaints and disclosures, in order to plead that ANZ intended to cause detriment to the applicant. The respondent denies the allegation. At its highest, Mr Edwards’ evidence is relevant to the question of subjective intention. It does not speak to the “facts, matters and circumstances” outlined in the applicant’s pleading. As such, it has limited utility for the respondent.

199    As with Messrs Santamaria, Collins and Edwards, the applicant relies on the revelations of discovery that post-date the affidavit evidence. It is not apparent how these revelations bear upon the characterisation of the witnesses’ evidence.

200    While closer to the line by virtue of express (albeit general) identification of consultations as the basis for forming a view, I do not consider that Mr Edwards’ evidence discloses the content of those communications (save as to the importance of confidentiality of the subjects of the Press Release) so as to be inconsistent with the maintenance of the confidentiality that attaches to any privileged communication. Furthermore, what it puts in issue is of limited utility on the applicant’s pleaded case, such that I am not persuaded that the maintenance of privilege would occasion any forensic unfairness to the applicant.

COSTS

201    It is common ground between the parties that s 570 of the Fair Work Act applies to this application, such that it would be necessary to bring an application under s 570 if costs were to be sought. No such application was brought by either party.

Associate:

Dated:    9 July 2026

Annexure 1