Federal Court of Australia

Villawood Management Pty Ltd v Marlton Group Pty Ltd [2026] FCA 1429

ORDERS

THE COURT ORDERS THAT:

1.    Villawood Management Pty Ltd, by its servants or agents, has leave to provide to an officer or officers of the Australian Federal Police for the purposes of investigating the possible commission of offences by Anthony Ronald Johnson, the documents described in the table of document titled “Documents in respect of which the Harman release is sought”, except for the documents numbered 23, 24, 25, 26, 27, 28, 28A, 29, 30 and 30A.

2.    Costs reserved.

3.    By consent, order 1 be stayed until midnight (AEDT) at the end of 14 October 2026.

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

ORDERS

THE COURT ORDERS THAT:

1.    Villawood Management Pty Ltd, by its servants or agents, has leave to provide to an officer or officers of the Australian Federal Police for the purposes of investigating the possible commission of offences by Anthony Ronald Johnson, the documents described in the table of the document titled “Documents in respect of which the Harman release is sought”, except for the documents numbered 23, 24, 25, 26, 27, 28, 28A, 29, 30 and 30A.

2.    Costs reserved.

3.    By consent, order 1 be stayed until midnight (AEDT) at the end of 14 October 2026.

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

ORDERS

THE COURT ORDERS THAT:

1.    Villawood Management Pty Ltd, by its servants or agents, has leave to provide to an officer or officers of the Australian Federal Police for the purposes of investigating the possible commission of offences Anthony Ronald Johnson, the documents described in the table of the document titled “Documents in respect of which the Harman release is sought”, except for the documents numbered 23, 24, 25, 26, 27, 28, 28A, 29, 30 and 30A.

2.    Costs reserved.

3.    By consent, order 1 be stayed until midnight (AEDT) at the end of 14 October 2026.

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

ORDERS

THE COURT ORDERS THAT:

1.    Villawood Management Pty Ltd, by its servants or agents, has leave to provide to an officer or officers of the Australian Federal Police for the purposes of investigating the possible commission of offences by Anthony Ronald Johnson, the documents described in the table of the document titled “Documents in respect of which the Harman release is sought”, except for the documents numbered 23, 24, 25, 26, 27, 28, 28A, 29, 30 and 30A.

2.    Costs reserved.

3.    By consent, order 1 be stayed until midnight (AEDT) at the end of 14 October 2026.

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

ORDERS

THE COURT ORDERS THAT:

1.    Villawood Management Pty Ltd, by its servants or agents, has leave to provide to an officer or officers of the Australian Federal Police for the purposes of investigating the possible commission of offences by Anthony Ronald Johnson, the documents described in the table of the document titled “Documents in respect of which the Harman release is sought”, except for the documents numbered 23, 24, 25, 26, 27, 28, 28A, 29, 30 and 30A.

2.    Costs reserved.

3.    By consent, order 1 be stayed until midnight (AEDT) at the end of 14 October 2026.

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

ORDERS

THE COURT ORDERS THAT:

1.    Villawood Management Pty Ltd, by its servants or agents, has leave to provide to an officer or officers of the Australian Federal Police for the purposes of investigating the possible commission of offences by Anthony Ronald Johnson, the documents described in the table of the document titled “Documents in respect of which the Harman release is sought”, except for the documents numbered 23, 24, 25, 26, 27, 28, 28A, 29, 30 and 30A.

2.    Costs reserved.

3.    By consent, order 1 be stayed until midnight (AEDT) at the end of 14 October 2026.

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

ORDERS

THE COURT ORDERS THAT:

1.    Villawood Management Pty Ltd, by its servants or agents, has leave to provide to an officer or officers of the Australian Federal Police for the purposes of investigating the possible commission of offences by Anthony Ronald Johnson, the documents described in the table of the document titled “Documents in respect of which the Harman release is sought”, except for the documents numbered 23, 24, 25, 26, 27, 28, 28A, 29, 30 and 30A.

2.    Costs reserved.

3.    By consent, order 1 be stayed until midnight (AEDT) at the end of 14 October 2026.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J

introduction

1    I have before me multiple interlocutory applications by Villawood Management Pty Ltd in proceedings numbered VID 653 of 2024 (called the Wallan proceeding), VID 640 of 2024 (called the Marriot Waters proceeding), VID 929 of 2024 (called the Langwarrin proceeding), VID 1113 of 2024 (called the Baxter proceeding), VID 1196 of 2024 (called the Johnson proceeding), VID 1340 of 2024 (called the Oppression proceeding), and VID 794 of 2025 (called the Vearings Lane proceeding) against Mr Anthony Ronald Johnson seeking orders releasing Villawood from its implied Harman undertaking in respect of certain specified documents produced in the proceedings. Villawood is the applicant in the Wallan, Marriot Waters and Baxter proceedings. It is a defendant in the Oppressions and Vearings Lane proceedings. It is a non-party in the Johnson and Langwarrin proceedings. There was no issue raised about Villawood’s ability to bring the application in those two proceedings because an order has been made treating discovery in one proceeding as discovery in each.

2    At the hearing on 23 September 2026, the parties agreed that I should proceed to decide the application made in the Wallan proceeding, and that the result in that proceeding would dictate the result in each of the other proceedings.

3    In the Wallan proceeding, Marlton Group Pty Ltd is the first respondent, Wallan Pastoral Pty Ltd is the second respondent, and Mr Johnson is the third respondent. Mr Johnson is and was at all material times the sole shareholder and director of Marlton (previously known as Mandate Property Group Pty Ltd).

4    Wallan Pastoral neither consented to nor opposed the release of the documents.

5    Villawood seeks release of specified documents from the implied Harman undertaking for the stated purpose of providing to the Australian Federal Police (or AFP) for investigation as to the alleged commission of possible offences by Mr Johnson in connection with the following three matters:

(1)    the creation of false documents (being what was called the “2012 DMA” [development management agreement]) and the giving of false instructions to the respondents’ lawyers (Mills Oakley);

(2)    the non-production of documents in response to a notice to produce and a related order of this Court; and

(3)    the deletion of documents on a computer which was the subject of an extant notice to produce.

6    Another category of possible offences concerning the destruction of physical documents at a time when litigation was contemplated was not pressed at the hearing.

7    The possible offences alleged to have been committed by Mr Johnson are:

(1)    attempting to pervert the course of justice by propounding a false document and by the destruction or non-production of documents, contrary to s 43 of the Crimes Act 1914 (Cth);

(2)    attempting to pervert the course of justice by propounding a false document and thus fabricating evidence, contrary to s 36(1) of the Crimes Act 1914 (Cth);

(3)    attempting to obtain financial advantage by deception by creating and propounding a false document, contrary to s 82(1) of the Crimes Act 1958 (Vic); and

(4)    contravening or conspiring to contravene s 39 of the Crimes Act 1914 (Cth) (or a similar provision in s 254 of the Crimes Act 1958 (Vic)) by destroying documents, by deleting them from a computer, that he knew were or might have been required in evidence in a judicial proceeding.

8    Villawood relied on affidavits of Mr Vince Annetta, a partner at Clayton Utz, its solicitors, dated 9 and 16 July, 4 August and 22 September 2026.

9    Marlton and Mr Johnson relied on the affidavits of Mr Michael Tandora, senior counsel at Mills Oakley, their solicitors, dated 13 August and 18 September 2026.

10    The documents in respect of which leave was sought were described by Villawood in a list entitled “Documents in respect of which the Harman release is sought”.

legal principles

11    There was no dispute between the parties about the applicable legal principles.

12    The Harman undertaking is a substantive obligation of law. It is the means by which the law ensures that a litigant compelled to disclose bears no burden harsher or more oppressive than the doing of justice requires. As such, there is a public interest in the enforcement of a Harman undertaking to maintain the integrity of the administration of justice. Further, the undertaking also serves a private interest in protecting the privacy of persons who are compelled to produce confidential documents by court process. Thus, a breach of the undertaking amounts to contempt.

13    As Branson, Sundberg and Allsop JJ said in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3 at [31]:

In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show “special circumstances”: see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:

•    the nature of the document;

•    the circumstances under which the document came into existence;

•    the attitude of the author of the document and any prejudice the author may sustain;

•    whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;

•    the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information):

•    the circumstances in which the document came in to the hands of the applicant; and

•    most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.

14    Leave of the court is required before a party will be permitted to use material obtained in a civil proceeding in furtherance of a criminal investigation or to provide such material to an investigative agency. Taking such steps without having sought and obtained leave of the court contravenes the Harman undertaking: see Deputy Commission of Taxation v Shi (2021) 273 CLR 235 at 262 [50] (Gordon J).

15    There are a number of cases where courts have granted leave to a party in a civil proceeding to be released from their Harman obligations to enable them to provide specified documents to the police for the purpose of investigating potential criminal conduct and admission in evidence in relation to any prosecution for criminal offences. See, for example, Ashby v Slipper (No 2) (2016) 343 ALR 351; [2016] FCA 550 (Flick J); Prime Finance Pty Ltd v Randall [2009] NSWSC 361 (Johnson J); Bensons Property Group Pty Ltd v Commonwealth Bank of Australia Ltd [2018] VSC 666 (Kennedy J, as her Honour then was); and Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476 (Lee J).

16    As Merkel J said in Australian Securities and Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833 at [12], a party applying for release should:

(a)    specify the documents in respect of which the modification or release is sought;

(b)    specify the purpose for which the modification or release is sought; and

(c)    satisfy the Court that the special circumstances relied upon by the party warrant or justify the modification or release sought.

17    As his Honour also said in that case at [13], in a passage approved by the Full Court in Glencore Coal Pty Ltd v Franks (2021) 284 FCR 622 at 630-631 [28] (Reeves, Perry and Abraham JJ):

The requirements of specificity in respect of the documents to be used and the purpose for which they are to be used is appropriate because the implied undertaking should only be modified or released to the extent that it is in the interests of the administration of justice or in the public interest to do so …. Thus, the modification or release should be no greater than is necessary or appropriate to meet the interests of the administration of justice or the public interest. Further, in determining whether to exercise its discretion to grant the modification or release sought, it will usually be necessary for the Court to identify with precision the documents to be released and the purpose of that release.

18    It follows that the assessment of special circumstances must be undertaken in relation to the specific documents in respect of which the release is sought: see James v Salier [2021] NSWSC 293 at [21] (Ward CJ in Eq).

19    As Lee J said in Bailey at 486:

… in a case, such as Rank Film, where the use to which the documents are to be put is in connection with a criminal prosecution in the public interest. In cases of that nature, the authorities suggest that the duty of the Court is to weigh up the competing considerations of public interest and determine how the interests of justice are best met: cf Holpitt Pty Ltd v Varimu Pty Limited (1991) 29 FCR 576 at 579 per Burchett J.

20    Further, as Lee J also observed in Bailey at 487-488 under the heading “Exercise of discretion”:

In the ordinary case, the two policy considerations referred to by Lord Denning M.R. in Riddick, namely, the right to privacy and confidence and the public interest in ensuring that full justice is done between the parties, will require the Court to enforce strict adherence to the parties’ implied undertaking. Just how strictly the undertaking is viewed is demonstrated by the facts and decision in Harman. As I have alluded to, however, there are cases in which the public interest may require that some limited use of the discovered documents, unconnected with the original action, be permitted. As I have noted, cases of that nature essentially involve a process of identifying and balancing competing factors in order to determine if the public interest is best served by discharging, relaxing or modifying the undertaking.

…

In any given case, the importance which the courts, as a matter of general policy, attach to the undertaking must be the starting point for a consideration of the discretion to grant leave. It is then for the applicant to persuade the Court that some countervailing public interest requires leave to be granted: CrestHomes at 859 per Lord Oliver.

In the present case that countervailing public interest is said to be the location and prosecution of criminal offenders. In my opinion, in determining the weight to be given to a public interest of that kind, some of the factors on which the Court will focus include: the nature of the offence alleged; the cogency of the evidence sought to be adduced in support of it; the authority to which the documents are sought to be disclosed; the manner of the authority’s intended user; the possibility of misuse by that authority and any prejudice, actual or potential, which may be occasioned to the respondents by the disclosure: cf. Holpitt at 579 per Burchett J. Of course this is not an exhaustive list.

21    Later, under the heading “Nature of the offence”, Lee J continued at 489-490:

It is clearly in the public interest generally to bring offenders to justice. If authority were needed for this point one need only refer to the discussion by the High Court in Bunning v Cross (1978) 141 CLR 54. This is not to say that in every case, however, documents will be permitted to be disclosed simply because an offence has been committed.

To illustrate this point, counsel for the defendants raised by way of example a civil defamation which, by its very nature, is also capable of constituting an offence under the Criminal Code. In such a case, it was rightly conceded, it would be ludicrous for a court to give leave to a plaintiff to release discovered documents to the criminal authorities simply for the purpose of initiating a prosecution for criminal defamation.

There is a clear distinction to be made between offences which essentially involve the infringement of private or individual rights and offences which it may be in the greater public interest to uncover. That is not to say that the public has no interest in protecting an individual from injury to his reputation, person or property but it is to recognise the reality that in many cases where private or individual rights are infringed adequate civil remedies will be available to the wronged party. In those types of cases the public interest will be suitably served by permitting the individual to continue with or initiate any action which he may have for a civil remedy. Conversely, if a party does not feel sufficiently aggrieved to protect his rights by means of any civil action open to him, it is difficult to see why the public conscience should feel any greater insult or burden. Much, of course, will depend on the circumstances of each case, including the nature of the individual’s right and the extent to which it has been infringed.

In the example postulated by senior counsel for the defendants, although technically a defamation may give rise to both civil and criminal proceedings, a plaintiff who wishes to vindicate himself by correcting any slur against his reputation may adequately and fully do so by way of an action for damages for defamation. The public interest having been served by the bringing of the wrong-doer to justice in a court of law, no further or greater public interest could usually be served by the bringing of criminal proceedings.

It is a very different circumstance, however, where no adequate civil remedy can be pursued in relation to the alleged wrong-doing. Where the bringing of criminal proceedings is the exclusive or perhaps the superior means of defending the public interest that will no doubt be a greater factor in favour of disclosure: cf. Sony Corporation v Anand [1981] FSR 398 per Browne-Wilkinson J. cited with approval by Millett J in Bank of Crete at 924.

In the present case assuming that a criminal offence, either against the Crimes Act or the Australian Federal Police Act or both, has been committed by the disclosure of these documents to the defendants, there is no question that any civil proceedings can be brought against the alleged wrong-doers. The only possible remedy lies with the criminal authorities and, as mentioned, that is a factor which weighs in the applicant’s favour.

Moreover, the offence or offences, if committed, are ones which, in my opinion, are serious enough to warrant the close scrutiny of the authorities. The provisions which I have outlined have as their evident intention the maintenance of confidence in the executive arm of government, in particular in relation to the impartial investigation and prosecution of criminal conduct. Unauthorised disclosure of documents prepared in the course of and relating to criminal prosecutions has, in my opinion, the certain and serious ability to undermine public confidence in the criminal process and, as this case demonstrates, the potential that serious damage may be caused to persons the subject of those investigations, particularly where no prosecution results. Moreover, the offences are of a nature which one may readily expect may not be easily detectable by the relevant authorities. These factors point strongly to the conclusion that there is a strong public interest to be served by the investigation of activity of this kind.

Discretionary factors

Nature of the documents and how they came into existence

22    As I have explained, the nature of the documents and the circumstances in which they came into existence are two factors relevant to the exercise of discretion.

23    The parties agreed that the circumstances in which the relevant documents came into existence included the following. In part, they were set out in the reasons of Anderson J in Villawood Management Pty Ltd v Marlton Group Pty Ltd [2025] FCA 980 (Villawood [2025] FCA 980). In other part, they are derived from documents produced for inspection in the proceedings, including the documents described in the table of Villawood’s document titled “Documents in respect of which the Harman release is sought”.

24    In Villawood [2025] FCA 980 his Honour acceded to an application by Villawood that the “fraud exception” applied with respect to certain discovered documents, entitling Villawood to inspect them. The facts were only partly known to Anderson J at the time he heard and decided the application because some seven months after judgment, Mr Johnson (and entities related to him) discovered 17 further documents, being emails and draft DMAs, as well as copies with metadata included, that should have been produced in October 2024 (that is, 17 months earlier) pursuant to an order made by Judicial Registrar Edwards (as her Honour then was).

Significance of the bolded italics

25    In the course of setting out below the circumstances in which the relevant documents came into existence, I have emphasised in bolded italics the description of the documents in respect of which, for the reasons I explain below, I shall grant Villawood leave to be released from its Harman obligations for the purpose specified.

The facts

26    On 12 February 2023, Mr Johnson asked Mr Dean Pappas (Chief Financial Officer of Villawood) for “a standard DMA”. The next day, Mr Pappas emailed an executed Project Management Agreement and an executed Development Services Deed to Mr Johnson, telling him that the former was “one of the more recent ones we have done …”.

27    On 12 February 2023, Mr Johnson emailed comments to Mr Matthew Bottrell, the then CEO of Marlton, about a slide deck in respect of the Wallan Pastoral Unit Trust, the owner of the subdivisional land at Wallan (known as the Wallan Project). Mr Johnson’s email stated:

A dm [development] agreement has been entered into with Mandate properties [now Marlton] on wallan in 2012 under advice from Pitcher partners [sic] to ensure/safeguard tax position

Mandate has not charged a fee since its appointment

28    Various iterations of that slide, including ones created by Ms Beth Johnson, Mr Johnson’s daughter and an employee of Marlton, were subsequently created.

29    On 23 or 24 February 2023, Mr Johnson chaired a meeting of the unitholders of the Wallan Pastoral Unit Trust. During that meeting, he said that the management of the Wallan Project was being undertaken by his family company, Marlton. A slide deck was used at the presentation. The precise version used was disputed before Anderson J, but Mr Johnson provided, by way of discovery, a version of the slide deck which stated:

Under advice from Pitcher Partners, during 2012, a Development Management Agreement (“DMA”) was entered into with Mandate Property Group.

…

The Wallan property has been managed by [Mr Johnson] for a period of 13 years with no fees taken to date. A fee will be sought in accordance with the DMA.

30    Mr Trevor Lockwood (one of the unitholders in the Wallan Pastoral Unit Trust) attended that meeting. He had not previously been aware of any “2012 DMA”.

31    On 28 February 2023, Ms Beth Johnson emailed Ms Kara Sabo, another of Mr Johnson’s daughters, attaching copies of same or similar versions of the Development Services Deed and Project Management Agreement referred to at [26], above.

32    Between March and May 2023, Ms Beth Johnson and Ms Sabo appear to have created various versions of “the 2012 DMA”, as follows.

33    On 21 March 2023, Ms Beth Johnson created, and Ms Sabo modified, a draft 2012 DMA with a notation “confirm appropriate date, check acquisition contract!” and “Date ???” and, in the definitions section, “Leave in or Kara to check every word exists in doc ?” – which Villawood alleges “is suggestive of a deliberate attempt in 2023 to create a back-dated document, namely the 2012 DMA”.

34    Ms Sabo emailed that draft of the 2012 DMA and a draft Project Management Agreement, also created by Ms Sabo on 21 March 2023, to Ms Candice Wilson, an employee of Marlton, on 21 March 2023.

35    Another version of the purported 2012 DMA was produced, also with metadata, which says that the document was created on 21 March 2023 by Ms Beth Johnson and modified by Ms Sabo on 16 April 2023. That draft states “25 August 2019 (relates to legislation (2018 GST withholding legislation and business addresses currently match 2010)” and bears the date “15 August 2010” at the bottom of the same page – which Villawood submitted was “suggestive of an attempt to manufacture a backdated document with tax provisions which were in force as at 2010”.

36    On 18 April 2023, one of Mr Lockwood’s employees sent an email asking another of Mr Johnson’s daughters, Ms Hannah Johnson, also an employee of Marlton, for a copy of the 2012 DMA and various other documents.

37    A draft DMA between Mt Duneed Developments Pty Ltd (as Developer) and Villawood (as Development Manager) was created by an unknown author on 19 April 2023. Villawood suggests that the draft DMA may have provided the basis for creating the purported 2012 DMA. That draft DMA appears to be the same as or similar to an executed DMA created on 16 November 2012.

38    On 27 April 2023, Mr Lockwood’s employee sent an email to Mr Lockwood stating:

I do not have a copy of the DMA yet but discussed with Hannah. She said it was signed around 2012 and only exists in hard copy which she is trying to locate. She said she will send me a copy once she locates.

39    On 28 April 2023, Ms Sabo created a further draft DMA between Mt Duneed Developments Pty Ltd (as Developer) and Villawood (as Development Manager). Villawood says that it may also have been the template for creating the purported 2012 DMA.

40    Ms Sabo emailed a version of the 2012 DMA, which had been created on 28 April 2023, to Ms Beth Johnson on 30 April 2023. It bore the date “June 2012”.

41    A further version of the purported 2012 DMA, which also bore the date “June 1 2012”, was created by Ms Sabo and modified by Ms Beth Johnson on 1 May 2023. Ms Beth Johnson emailed that modified version of the 2012 DMA to Ms Sabo on 3 May 2023. As at 3 May 2023, it bore the date “January 2012”.

42    On 15 May 2023, Mr Lockwood’s employee emailed him a version of the 2012 DMA (Lockwood version), which was a PDF document: (a) which was signed in wet ink on page 45 by Mr Johnson for both Marlton and Wallan Pastoral; (b) which did not contain a wet ink date on page 4, containing only “2012” in type; (c) the cover page of which recorded the date of “January 2012”, also in type; and (d) contained a “page 2” as part of the table of contents.

43    On 19 April 2024, Mills Oakley provided a version of the 2012 DMA to Mr Craig Treasure, who was a director of Villawood, and others (Mills Oakley version).

44    Justice Anderson described the Lockwood version and the Mills Oakley version, as well as an electronic version of the 2012 DMA before him (Soft Copy version) as follows (at [45(g)]):

the metadata for a soft copy version of the 2012 DMA (Soft Copy version) has the creation date of 1 May 2023. The Soft Copy version is an under-developed version of both the Lockwood version and the Mills Oakley version of the 2012 DMA. There is no address for service and there is no signing page. Villawood submit that the 1 May 2023 creation date of the Soft Copy version fits into the sequence of events in which Mr Lockwood first asked for a copy of the 2012 DMA on 18 April 2023, and where the Lockwood version was then provided to him on 15 May 2023.

45    His Honour also later observed: “The Soft Copy version of the 2012 DMA was created on 1 May 2023. It is an incomplete version of both the Lockwood version and the Mills Oakley version of the 2012 DMA. There is no address for service and there is no signing page” (at [76]).

46    On 16 April 2024, an unknown author created the final version of the 2012 DMA, dated “January 2012”. It was executed by Mr Johnson on behalf of both Wallan Pastoral and Mandate.

47    The Mills Oakley version was also signed by Mr Johnson. Neither Mills Oakley, Mr Johnson nor Marlton explained why the two versions of the 2012 DMA were different.

48    On 26 February 2024, Mr Treasure wrote to Mr Johnson as follows:

On 23 February 2023, you chaired a meeting of the unitholders of the Wallan Pastoral Unit Trust during which you made statements to the effect that you intended to appoint your private entity “Mandate” as the development manager for the Projects.

If implemented, the appointment of Mandate would replace Villawood Management Pty Ltd (VM) as the manager of the Projects and thereby deprive VM of management fees. For the avoidance of doubt, we confirm that this change has never been raised with the Villawood/Sandhurst board members and is not agreed.

49    As Anderson J noted at [29], Mills Oakley responded by saying that “the Johnson entities” had “nothing to hide”, as follows:

On 19 April 2024, Mills Oakley wrote to Mr Treasure and David Rennick of the Villawood group and Mr Lockwood and Mr Costelloe of Sandhurst. Mills Oakley attached a version of the 2012 DMA (Mills Oakley version). The letter said, “the Johnson Entities have nothing to hide with respect to the Wallan Pastoral Allegations” and referred to the Mills Oakley Version of the 2012 DMA as “a copy of a development agreement between Wallan Pastoral and Mandate dated 12 January 2012”.

50    On 17 May 2024, Clayton Utz replied to the Mills Oakley letter dated 19 April 2024 and made the following request:

Please send us a copy of the following documents which formed attachments to your letter, in the form in which they are stored including all metadata associated with the documents: (a) the development agreement between Wallan Pastoral dated 12 January 2012…

51    On 31 May 2024, Mills Oakley replied to Clayton Utz refusing the request for the attached documents and metadata because there was no basis for it, in these terms:

We also do not see any basis upon which Our Clients are obliged to provide you with the material sought in… your letter of 17 May 2024… nowhere in the correspondence – or the Draft SoC – is there any suggestion that those copies are anything other than true copies of the documents.

Finally, if there are any allegations as to the provenance of those documents then, given their (obvious) gravity, they ought to be squarely made.

52    The Marriott Waters proceeding was commenced on 8 July 2024. The Wallan proceeding was commenced on 5 July 2024.

53    On 22 July 2024, Mr Stuart Lewin of Mills Oakley swore his first affidavit in the Marriott Waters proceeding (Lewin 1). It was filed in support of an injunction application, filed on 23 July 2024, which sought to restrain Villawood from acting on a default notice and initiating the process compulsorily to transfer Mr Johnson’s shares in Villawood. Lewin 1 contained the following assertions relating to Mr Johnson’s instructions about the validity of the 2012 DMA:

[88]    However, the bases upon which the respondents to the Wallan Proceeding deny the allegations in the Default Notice, in so far as they concern the Wallan Property, and the Wallan Proceeding have been set out in the 19 April letter referred to in paragraph 34 above. In this section E I set out those matters, which are based on instructions provided to me by Mr Johnson. I expect that those matters will form the basis of the defence to be filed in the Wallan Proceeding.

…

[99]    On 12 January 2012, the “Development Management Agreement” referred to in paragraph 4(e) of the statement of claim in the Wallan Proceeding was executed on behalf of Wallan Pastoral and Marlton Group by Mr Johnson. At page 219 of Annexure SAL-1 is a copy of that agreement. Mr Johnson did not immediately disclose that agreement to unitholders in WPUT because no payment under it was due in the foreseeable future.

54    Villawood obtained three drafts of Lewin 1 in response to a subpoena on 6 February 2025. Each included a paragraph that said as follows:

On 12 January 2012, the “Development Management Agreement” referred to in paragraph 4(e) of the statement of claim in the Wallan Proceeding was executed on behalf of Wallan Pastoral and Marlton Group by Mr Johnson. At page 219 of Annexure SAL-1 is a copy of that agreement. Mr Johnson did not immediately disclose that agreement to unitholders in WPUT because no payment under it was due in the foreseeable future.

55    A file note of a conference held on the morning of 22 July 2024 was also produced by Mills Oakley after the determination by Anderson J in Villawood [2025] FCA 980.

56    That file note reads:

JG [Mr Graham KC]:    Mandate Agreement. When did that get signed and put in bottom drawer?

TJ [Mr Johnson]:    Advice from John R at Pitcher Partners – distance yourself. Farmers gone on to pursue rezoning of land and caught out (revenue). Ripped of VM template. For later on, if ever questioned, all done as Mandate by development manager (trustee different). Separate interest of land owner, etc.

KS [Ms Sabo]:    Contradictory. If TJ using emails as VM to lobby for project, contrary to us he wants to separate. Development Management Agreement, emphasised, acquisition fee, never charged. No imminent fees from project, no sale because no interest. Won’t be developed for many years, no immediate threat.

TJ:            Never acted upon. In bottom drawer as tax protection.

JG:    Hasn’t become relevant, hasn’t proceeded to development phase.

BJ [Ms Beth Johnson]:    Referenced in SH meeting, need cash to next process. DM then got fiery.

KS:    Never disclosed, became problem. Recently done calculations on fee, best case scenario, if project was to be developed out, and sold at high price, between $6 – 9m. They’ve quoted a lot higher.

JG:    Executed on that date. Wasn’t disclosed. Not surprising, because not relevant. Referred to in meeting last year because seeking to obtain fee.

57    Villawood made the following submissions about matters I have referred to in [53]-[56] above:

Thus it may be seen that the respondents anticipated that the 2012 DMA would generate fees of $6 million to $9 million for the first respondent, Marlton Group Pty Ltd (then known as ‘Mandate’), a company solely owned by Mr Johnson. That is, that sum was to be diverted from Villawood to Marlton Group Pty Ltd via the false 2012 DMA.

58    On 27 August 2024, Villawood served a notice to produce on each of the respondents in the Wallan proceeding seeking documents in connection with Lewin 1, including the original 2012 DMA. The notice to produce relevantly sought the following documents:

1.    The original of the document styled “Development Management Agreement” dated 12 January 2012 (DMA), a copy of which appears at pages 219 to 268 of exhibit “SAL-1” to the affidavit of Stuart Andrew Lewin sworn 22 July 2014 and filed in proceeding VID640/2024 (Lewin Exhibit).

2.    All soft copies of the DMA in the form in which they are stored including all metadata associated with each copy.

3.    Any document dated or created between 12 January 2012 and 23 February 2023 which refers to the DMA.

4.    The original of the document styled “Wallan Pastoral” and dated 23 February 2023 (February 2023 Presentation) which appears at pages 269 to 284 of the Lewin Exhibit.

5.    All soft copies of the February 2023 Presentation in the form in which they are stored including all metadata associated with each copy.

6.    The original of the document styled “Moore Road and Wallan Pastoral Unit Holder Update Meeting Minutes” (February 2023 Minutes) which appears at pages 285 to 287 of the Lewin Exhibit.

7.    All soft copies of the February 2023 Minutes in the form in which they are stored including all metadata associated with each copy.

59    Villawood also informed the respondents that it would seek to lead expert evidence at trial in relation to the 2012 DMA.

60    On 14 October 2024, Judicial Registrar Edwards made the following orders:

1.    The respondents produce to the Registry all documents that respond to the applicant’s notice to produce (Notice) dated 27 August 2024 by 4.00pm on 21 October 2024.

2.    The applicant’s solicitors have leave to copy any documents produced in response to in paragraphs 2, 3, 5 and 7 of the Notice and to remove any original documents produced in response to paragraphs 1, 4 and 6 of the Notice.

3.    Any original documents removed from the Court must be returned by the applicant’s solicitors within 35 business days and must at all times remain in the possession of the applicant’s solicitors or an independent expert engaged by the applicant for the purposes of this proceeding and/or related proceeding VID640/2024 to examine the documents.

4.    The respondents pay the applicant’s costs of and incidental to the respondents’ application to set aside the Notice (Application).

5.    The Application be dismissed.

61    On 29 November 2024, Mr Lewin swore, filed and served his second affidavit in the Marriott Waters proceeding (Lewin 2) in support of the injunction application, which consisted in its entirety, of the following:

[1]    I am a partner of the law firm Mills Oakley, the solicitors for the respondents in this proceeding. I have the care and conduct of the proceeding on behalf of the respondents and am authorised to make this affidavit on their behalf.

[2]    On 22 July 2024, I swore an affidavit that was filed in this proceeding, in which I stated (at [99]):

“On 12 January 2012, the ‘Development Management Agreement’ referred to in paragraph 4(e) of the statement of claim in the Wallan Proceeding was executed on behalf of Wallan Pastoral and Marlton Group by Mr Johnson. … Mr Johnson did not immediately disclose that agreement to unitholders in WPUT because no payment under it was due in the foreseeable future.”

[3]    I believed that statement to be true at the time I swore my affidavit but I now believe that the document was executed in about 2022 and so I am making this affidavit to correct that statement and withdraw it.

62    As Anderson J observed, “Mr Lewin did not attempt to explain how the false statement relating to the 2012 DMA made its way into his first affidavit. No explanation has been given as to how or why Mr Lewin changed his mind” (at [40]). That remains the case.

63    Villawood obtained twelve drafts of Lewin 2 in response to a subpoena issued on 6 February 2025. Some drafts included a paragraph that said: “I have since received further instructions from Mr Johnson, that the ‘Development Management Agreement’ was signed in mid-2022”. Other drafts also read “2022” rather than “mid-2022”.

64    Despite what Mr Lewin conceded in Lewin 2, when Marlton, Wallan Pastoral and Mr Johnson later filed their defences in the Wallan proceeding, none of them admitted that the 2012 DMA was not executed on the date it bears, or that Mr Johnson falsely represented that it had been executed in 2012.

65    On 29 October 2024 (that is, between the dates that Lewin 1 and Lewin 2 were sworn), Wallan Pastoral and Marlton agreed to “terminate” the 2012 DMA pursuant to a Deed of Termination. Mr Johnson signed for Wallan Pastoral and Marlton.

66    Mr Bottrell produced documents on 14 April 2025 pursuant to a subpoena issued on 4 April 2025. Wallan Pastoral produced documents through its then new independent director Mr Michael McCreadie on 24 and 25 March 2025 pursuant to the notice to produce dated 27 August 2024.

67    Villawood submitted to Anderson J that these documents show the following:

(a)    on or around 11 February 2023, Mr Bottrell prepared a draft of the slide deck that Mr Johnson subsequently used at the Wallan Pastoral Unit Trust presentation on 23 or 24 February 2023;

(b)    on 11 February 2023, Mr Bottrell provided to Mr Johnson that draft of the slide deck. It contained a Mandate logo on the front page. It did not contain any reference to the 2012 DMA. Instead, it contained the following:

To date, on a zero-fee basis, Mandate Property Group has sourced properties, secured funding, ensured compliance and managed the project

(c)    on 12 February 2023, Mr Johnson emailed comments to Mr Bottrell on the draft slide deck. His comments included that the Mandate logo should be deleted;

(d)    on 14 February 2023, Mr Bottrell produced a revised version of the slide deck, with the Mandate logo removed. It also replaced the reference to Marlton having acted on a “zero-fee basis”, with the following:

Wallan Pastoral is proving to be a [valuable] investment, we expect returns above an IRR of 20% to be achieved.

…

Under advice from Pitcher Partners, a Development Management Agreement was entered into with Mandate Properties in 2012 to provide a safeguard for tax matters. Please note that Mandate has not charged any fees since its appointment.

(e)    on 20 February 2023, a further soft version of Mr Bottrell’s slide deck was created by Ms Beth Johnson. That version of the slide deck, under the heading “management fees”, contained the following:

The Wallan property has been managed by [Mr Johnson] for a period of 13 years with no fees taken to date.

In accordance with the DMA, a Project Management Agreement will be drafted reflecting standard Villawood Management fee structure. A retainer of $10,000 per month will be sought prior to fees payable.

(f)    on 20 February 2023, Mr Bottrell circulated to Mr Johnson and others a revised draft slide deck. That version of the slide deck referred to the following:

Wallan Pastoral is proving to be a [valuable] investment, we expect [overall] returns to exceed 20%.

…

Under advice from Pitcher Partners, during 2012, a Development Management Agreement (“DMA”) was entered into with Mandate Properties. The DMA provides a safeguard for tax matters. Please note that Mandate Properties has not charged any fees since its appointment.

Villawood submitted before Anderson J and me that this language reflected, in substance, what was included in the version of the presentation document produced by Mills Oakley on 19 April 2024;

(g)    the metadata for the Soft Copy version has the creation date of 1 May 2023. The Soft Copy version is an under-developed version of both the Lockwood version and the Mills Oakley version of the 2012 DMA, in the sense that there is no address for service and no signing page. Villawood submitted that the 1 May 2023 creation date of the Soft Copy version fits into the sequence of events in which Mr Lockwood first asked for a copy of the 2012 DMA on 18 April 2023, and where the Lockwood version was then provided to him on 15 May 2023.

68    On 21 February 2025, Villawood issued a subpoena to Mills Oakley (MO Subpoena) calling for the production of:

1.    All documents which contain or refer to the "instructions" referred to in paragraph 88 of the First Lewin Affidavit, provided by Anthony Ronald Johnson to Stuart Andrew Lewin, to the effect set out in paragraph 99 of the First Lewin Affidavit as follows:

(a)    “On 12 January 2012, the ‘Development Management Agreement’ referred to in paragraph 4(e) of the statement of claim in the Wallan Proceeding was executed on behalf of Wallan Pastoral and Marlton Group by Mr Johnson” and / or

(b)    “Mr Johnson did not immediately disclose that agreement to unitholders in WPUT because no payment under it was due in the foreseeable future".

2.    All drafts of paragraph 99 of the First Lewin Affidavit, whether so numbered or constituted, in the form which they are stored, including, in respect of any soft copy documents, all meta data associated with the documents.

3.    All documents which refer to Mr Lewin’s belief to the effect that the “Development Management Agreement” (referred to in paragraph 99 of the First Lewin Affidavit) was executed in about 2022, as deposed in paragraph 3 of the Second Lewin Affidavit.

4.    All drafts of the Second Lewin Affidavit, in the form which they are stored, including, in respect of any soft copy documents, all meta data associated with the documents.

69    As Anderson J said when he turned to the question of what the evidence then before him disclosed:

[82]    From 23 or 24 February 2023, the date Mr Johnson chaired the Unitholders Meeting for the WPUT until the filing of the second Lewin affidavit, on 29 November 2024, Mr Johnson consistently asserted that the 2012 DMA was executed in 2012. The evidence now is that the 2012 DMA was not created in 2012 but was executed in about 2022. I accept that the creation on 1 May 2023 of the Soft Copy version of the 2012 DMA throws doubt on the veracity of the assertion in the second Lewin affidavit that the 2012 DMA was executed in about 2022.

…

[86]    Mr Johnson’s representations, commencing on 23 or 24 February 2023 (at the Unitholder Meeting), that the 2012 DMA was executed in 2012, provided an explanation for, and lent credibility to, the notion that Villawood was never entitled to management fees in respect of the Wallan Project. The documents produced by Mr Bottrell and Wallan Pastoral (as outlined above) also indicate that Mr Johnson was the source of the representation in the presentation shown to unitholders on 23 or 24 February 2023, that the 2012 DMA was executed in 2012.

…

[91]    The fact as to when the 2012 DMA was executed, to which Mr Lewin swore in his first affidavit, went to one of the central issues in the Wallan Proceeding, namely who was entitled to management fees in relation to the Wallan Project. I infer that Mr Johnson’s purpose in giving those instructions can only have been to use Mr Lewin to mislead Villawood and the other parties in the Wallan Proceeding and to mislead the Court itself.

70    On 25 March 2026, Mills Oakley produced 16 documents in response to the MO Subpoena. A table entitled “Annexure – Objection Schedule”, which describes the documents, was annexed to the letter Mills Oakley sent to my associate when the documents were produced.

The attitude of the author of the documents and any prejudice the author may sustain

71    As I noted earlier, Wallan Pastoral neither consented to nor opposed the release of the documents.

72    Mr Johnson and Marlton opposed the release.

73    As is apparent from the factual matters set out above, some of the documents were obtained by way of subpoenas issued to Mills Oakley and to Mr Bottrell. Mills Oakley and Mr Bottrell said that they did not consent to the release of such documents (although neither sought leave to appear at the hearing or made any submissions about the question).

74    Villawood submitted that there is no evidence that Mills Oakley or Mr Bottrell will sustain any prejudice by reason of any referral to the AFP.

75    Other than the prospect of being investigated by the AFP, Villawood submitted that there was no evidence of any other prejudice that may be suffered by Mr Johnson or Marlton by reason of the disclosure of the documents to the AFP. Mr Johnson and Marlton said that there was a real prospect that the civil proceedings would be stayed pending the conduct of any concurrent criminal process, and that would be a form of prejudice. I deal with that submission below.

76    As to the use to which the material may be put by the AFP, it can be expected that the material will, so far as possible, be used on a confidential basis, and senior counsel for Villawood undertook that if the release orders are made, it will ask the AFP to keep the documents confidential (to the extent possible).

Whether the documents pre-existed litigation or were created for that purpose and therefore expected to enter the public domain

77    Villawood submitted that “[t]here is prima facie evidence that the purported 2012 DMA and its various drafts were false documents created to support a purported right of Marlton … to enable it to divert fees known by the respondents to be in the order of $6 million to $9 million from Villawood to Marlton ... It can be expected that the authors would have anticipated that there was a reasonable prospect that such documents would enter the public domain in the event that the matter were litigated”. It further submitted that “many of the other documents in respect of which the release is sought were created either as documents to be filed in the present proceedings (such as affidavits) or are documents prepared in the course of litigation”. So much is self-evident, and neither Mr Johnson nor Marlton contended otherwise.

The nature of the information in the documents (in particular whether they contain personal data or commercially sensitive information)

78    The documents are mainly what appeared to be concocted business records, instructions to Mills Oakley and documents, like emails, related to or made in furtherance of them.

79    They do not contain personal information or commercially sensitive information.

80    In any event, as the Full Court said in Liberty at [22], once such documents, including affidavits, are “filed and served, a step was taken entirely antithetical to the confidentiality that might be said to have previously existed in the content of the document, the communications stated therein and any advice which might be inferred therefrom”. And so it is here.

The circumstances in which the documents came into the hands of the applicant

81    The documents were produced on discovery or under subpoena, so leave to provide them to the AFP is necessary: see Shi at 262 [50] (Gordon J) (“leave of the court is required before a party will be permitted to use material obtained in a civil proceeding in furtherance of a criminal investigation or to provide such material to an investigative agency”).

Whether justice will be achieved by allowing the documents to be used for the proposed non-litigious purpose

82    Villawood submitted that the provision of the documents to the AFP will enable the investigation of serious potential criminal offences and that it is in the interests of justice that this occur, quoting Johnson J in Prime Finance at [37]:

The courts have recognised that there can be a public interest in favour of disclosure in respect of information that is relevant to the investigation and prosecution of a criminal offence, which can override the public interest, in the administration of justice, in the preservation of the confidentiality of discovered documents.

See also Ashby at [12] (and the cases cited therein).

83    Here the documents summarised or described above suggest criminal conduct.

84    As Villawood submitted, the documents in respect of which the release is sought appear to disclose a deliberate attempt, over an extended period, to create the purported 2012 DMA and to propound it as a genuine document, including by Mr Johnson giving false instructions to his lawyers, in order to seek to obtain a sum of between approximately $6 million to $9 million (which, as noted in the Mills Oakley file note at [56] suggests, the anticipated fee range that Marlton would have earned pursuant to the terms of the 2012 DMA).

85    Villawood submitted that the documents suggest that, contrary to s 43 of the Crimes Act 1914 (Cth), Mr Johnson attempted to pervert the course of justice by propounding the purported 2012 DMA as being legitimate, and by the non-production of documents in the circumstances (including, but not limited to, the fact that he knew that there was an extant notice to produce) set out at paragraphs [26]-[70] above.

86    Section 43 of the Crimes Act 1914 (Cth) relevantly provides:

Attempting to pervert justice

(1)    A person commits an offence if:

(a)    the person attempts to obstruct, to prevent, to pervert or to defeat the course of justice in relation to a judicial power; and

(b)    the judicial power is the judicial power of the Commonwealth.

Penalty: Imprisonment for 10 years.

(2)    Absolute liability applies to the paragraph (1)(b) element of the offence.

Note: For absolute liability, see section 6.2 of the Criminal Code.

(3)    For the person to be guilty of an offence against subsection (1), the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact. …

87    As McHugh J said in R v Rogerson (1992) 174 CLR 268 at 297-298:

To attempt to pervert the course of justice is a common law misdemeanour [citing Reg. v. Vreones, [1891]1 QB 360 at p 367; Reg v Murphy (1985), 158 CLR. 596 at p 609]. The origin of the offence is obscure but it appears to have developed from the law which came to be categorized as a conspiracy to pervert the course of justice [citing Archbold, Pleading, Evidence and Practice in Criminal Cases, 43rd ed. (1988) p 2462]. As the English Court of Appeal pointed out in Reg v Rowell [1978] 1 WLR 132, at p 138; [1978] 11 All ER 665 at p. 671], however, the "use of the word 'attempt' in this context is misleading". The essence of the offence is "the doing of some act which has a tendency and is intended to pervert the administration of public justice" [citing Vreones, [1891]1 QB, at p. 369; Murphy (1985), 158 CLR., at p. 609]. An attempt to pervert the course of justice is a substantive and not an inchoate offence (Machin (1980) 71 Cr App R 166 at p 170). In Reg. v. Machin, the Court of Appeal pointed out that the word "attempt" [citing (1980) 71 Cr App R 166 at p 170] "is convenient for use in the case where it cannot be proved that the course of justice was actually perverted but it does no more than describe a substantive offence which consists of conduct which has tendency and is intended to pervert the course of justice". It is the tendency of the conduct which is decisive, and it is irrelevant whether the conduct did or did not bring about a miscarriage of justice.

88    And as Brennan and Toohey JJ explained in Rogerson at 280:

Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case [citing Reg. v. Todd [1957] SASR at p 328…]. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice [footnote omitted]. An act which effects any such impairment is the actus reus of a perversion of the course of justice. An agreement that an act be done which has such an effect and which is not otherwise justified in law is the actus reus of a conspiracy to pervert the course of justice. Each of these offences requires a specific intent. In the case of an attempt to pervert the course of justice, and in the case of perverting the course of justice, the intent which must accompany the relevant actus reus is that the course of justice should be perverted in one of the ways mentioned.

(Emphasis added.)

89    Further, as Villawood also submitted, it is arguable that Mr Johnson’s conduct in bringing into existence the 2012 DMA contravened s 36 of the Crimes Act 1914 (Cth), which provides:

36    Fabricating evidence

(1)    A person commits an offence if:

(a)    the person:

(i)    fabricates evidence; or

(ii)    makes use of fabricated evidence; and

(b)    the person does so with the intention of misleading a court or judicial tribunal in a judicial proceeding; and

(c)    the judicial proceeding is a federal judicial proceeding.

Penalty: Imprisonment for 5 years.

(2)    Absolute liability applies to the paragraph (1)(c) element of the offence.

Note: For absolute liability, see section 6.2 of the Criminal Code.

90    “Fabricate” implies fraud or falsehood, a false or fraudulent concoction, knowing it to be wrong: see Aberdare Local Board v Hammett (1875) LR 10 QB 162 at 166 (Quain J). And it is beyond doubt that an accused may be guilty of the offence even if the evidence is not used: see R v Vreones [1891] 1 QB 360, cited with approval in Rogerson at 301.

91    Villawood also submitted that the material suggests that, by creating and propounding the purported 2012 DMA, Mr Johnson attempted to dishonestly obtain financial advantage by deception, contrary to s 82(1) of the Crimes Act 1958 (Vic), which provides:

A person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

92    The attempted financial advantage alleged is the management fee that Marlton would have earned pursuant to the terms of the 2012 DMA.

93    Whether the AFP can investigate a possible offence under the Crimes Act 1958 (Vic) would involve a question of the application of ss 4AA(1)(d) and 8(1)(baa) of the Australian Federal Police Act 1979 (Cth), which I deal with briefly below. Mr Johnson and Marlton submitted that the AFP could not investigate or bring charges under the Victorian Crimes Act.

94    The respondents’ principal submissions were that Villawood (i) seeks to advance its private interests, not a public interest; and (ii) must, but has not, sufficiently explained why it wishes to have the AFP investigate the relevant matters. They also contended that because Villawood has commenced contempt proceedings against Mr Johnson in this Court for the same conduct (principally in respect of the 2012 DMA), that factor, together with (i) and (ii), weigh strongly against the exercise of the discretion to release the documents to the AFP.

95    Before dealing with those submissions, I should deal with some of the other matters relied on by Mr Johnson and Marlton in opposition to the making of the release orders, which, for the reasons I give, have little or no relevance to the exercise of the discretion in this case.

96    First, it was submitted that “it is a matter of speculation” as to whether the AFP would have any interest in investigating the matters relied on. I disagree. Given the apparent seriousness of Mr Johnson’s conduct, I would not relegate to the realm of “speculation” whether the AFP would investigate the matters.

97    Relatedly, Mr Johnson and Marlton submitted that the subject matter of the postulated investigation is not within “the AFP’s investigatory priorities”, which, so I was told, are set out in a Ministerial Direction (issued on 16 July 2026) and which are said to concern protecting “Australia’s National Security”, strengthening social cohesion and resilience and contributing to “Regional Security” – none of which, it was submitted, “bear any relationship to the kinds of offences alleged by [Villawood]”.

98    I reject that submission. The notion that it is not within the mandate or “priorities” of the AFP to investigate Commonwealth offences against laws of the Commonwealth only needs to be stated to be rejected.

99    As to the State offences, s 8(baa) of the Australian Federal Police Act 1979 (Cth) provides that the functions of the AFP include “the investigation of State offences that have a federal aspect”.

100    Sub-section 4AA(1) of the Australian Federal Police Act 1979 (Cth) provides that for the purposes of that Act, a State offence has a federal aspect to it if “(d) both: (i) the [AFP] is investigating an offence against a law of the Commonwealth or a Territory; and (ii) if the [AFP] is investigating, or were to investigate, the State offence – that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i)”.

101    As to the meaning of s 4AA(1)(d)(ii) and whether an investigation of a State offence would be “incidental” to an investigation of an offence against a law of the Commonwealth, see R v TB (No 6) [2023] SASC 140 (Kimber J) and on appeal in R v TB (2024) 145 SASR 454 at 492 [337] – 499 [370] (Livesey ACJ, David and Doyle JJA). (Special leave to appeal to the High Court from the decision of the Full Court on an unrelated point was granted and later revoked).

102    In my view, it would be up to the AFP to make its own assessment of the question posed by s 4AA(1)(d). That seems to me to be at least an open question, and it is not desirable that I weigh in on it here.

103    Secondly, Mr Johnson and Marlton submitted that “there is a range of materials that are available to [Villawood] which are not impressed with the implied undertaking and which could be provided to the AFP, including the reasons [in Villawood [2025] FCA 980], open correspondence between the parties (including with the Court) and copies of pleadings (including an originating application and any cross-claim) and interlocutory applications made in the various proceedings”. It was further asserted that Villawood “does not explain why such documents are not sufficient to enable the AFP to decide whether to commence an investigation, whereupon the AFP would have available its own investigative powers. [Villawood] does not grapple with this aspect at all”.

104    I reject those submissions. The fact that Villawood has in its possession documents that may not be covered by the Harman undertaking is not a reason not to allow release of material covered by the undertaking, especially when it is not said what each of the “non-Harman” documents (which I note, on the respondents’ view of it, does not include any affidavits or discovered documents) might relevantly demonstrate.

105    Thirdly, it was submitted that it should weigh in the balance that the Court is empowered to control its own processes, and can make orders on its own initiative, and may also refer the papers or a particular matter to investigative agencies, if it is warranted. I was referred by counsel for Mr Johnson and Marlton to the judgment of Perram J in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392 at [485], where his Honour said this:

I direct the Registrar to forward a copy of these reasons to the Commonwealth Director of Public Prosecutions, the Australian Securities and Investments Commission and the Australian Federal Police. The facts I have found strongly suggest widespread money laundering, tax fraud of the most serious kind and, possibly in some instances, insider trading. The conduct revealed in this case is disgraceful.

106    Of course, the Court has the power in these proceedings to make a direction referring documents to the AFP or to the Commonwealth Director of Prosecutions, but here I am dealing with Villawood’s release application. And the fact that I also have the power to make a direction along the lines made by Perram J in Hua should not, it seems to me, weigh in the balance against making a release order.

107    Fourthly, it was submitted that Villawood failed to address the impact of an external criminal process involving the AFP on the conduct of the litigation, and the prospect that the proceedings could be stayed pending the conduct of any concurrent criminal process.

108    I agree that there would be such a prospect if Mr Johnson were to be charged with one or more of the offences set out above. It would also be true that Mr Johnson might then be subject to simultaneous civil (stayed) and criminal proceedings, but it seems to me that such considerations should not have any particular significance to the applications before me here. Whether a stay would or would not be granted would depend on many factors. See, for example, Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (2019) 138 ACSR 42; [2019] FCA 964 at 55 [50] – 58 [64] (Moshinsky J). But the guiding principle is whether the interests of justice require a stay, so if grounds for one are made out, then that is what those interests require.

109    I now turn to the three main issues developed by senior counsel for Mr Johnson and Marlton in his oral submissions.

110    First, I turn to the contempt applications.

111    On 7 April 2026, Villawood filed statements of charge for two contempt applications against Mr Johnson in each of the Marriott Waters proceeding and the Wallan proceeding.

112    Both allege that:

(1)    in July 2024, Mr Johnson knowingly provided false instructions to his legal representatives in relation to the date of execution of the 2012 DMA in a deliberate attempt to deceive the Court, with those instructions forming the basis of Lewin 1; and

(2)    in or around November 2024, Mr Johnson knowingly provided false instructions to his legal representatives in relation to the date of execution of the 2012 DMA in a deliberate attempt to mislead and deceive the Court, with those instructions forming the basis of Lewin 2.

113    The statement of charge for a single contempt application against Mr Johnson, filed by Villawood and dated 9 July 2026 in the Wallan proceeding, alleges that Mr Johnson failed to produce 17 documents to the Court in accordance with a notice to produce dated 27 August 2024 and orders made on 14 October 2024 by a Registrar of the Court.

114    The statements of charge were described by Anderson J in Villawood Management Pty Ltd v Marlton Investments Pty Ltd [2026] FCA 1361 in which his Honour acceded to an application by Mr Johnson to recuse himself from hearing the contempt applications. The applications have since been reallocated to another judge.

115    Senior counsel for Villawood did not dispute that the contempt charges cover the same field as the first two categories of matters relied on for the release application, being the creation of false documents and the giving of false instructions to the respondents’ lawyers; and the non-production of documents in response to a notice to produce and related order.

116    In my view, however, that is not a reason that should weigh heavily against the making of the release orders sought, given the obvious public interest involved.

117    As I said, it was also submitted on behalf of Mr Johnson and Marlton that the relevant conduct is conduct associated with private wrongs for which there are civil remedies available to Villawood, including remedies that are already being pursued by it.

118    For example, for the first category of conduct (creating false evidence and giving false instructions), Villawood’s case is that the conduct involved an attempt to divert management fees in the order of $6 million to $9 million from Villawood to Marlton. In the Vearings Lane proceeding, the applicant pleads that this conduct involved breaches of duty owed by Mr Johnson and misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law, which entitles it to relief. In addition, in the period 27 June 2024 to 23 February 2026, the applicant and the shareholders who control the applicant issued five default notices under clause 17.4 of the shareholders’ deed dated 21 January 2016 between the applicant and its shareholders, and in each of the default notices it is alleged that the first category of conduct (or aspects of it) found breaches of the shareholders’ deed and an entitlement compulsorily to acquire Mr Johnson’s shareholding in the applicant.

119    Mr Johnson and Marlton went so far as to submit that “[t]his is the paradigm of the case Lee J described in Bailey, namely an alleged offence that ‘essentially involve[s] the infringement of private or individual rights’, for which ‘adequate civil remedies will be available to the wronged party’”.

120    I disagree. It is, of course, true that in those proceedings in which Villawood is an applicant, it seeks private remedies. But the matters raised by the applications before me have the potential to strike at the heart of the administration of justice, for reasons which are explained in some detail by Brennan and Toohey JJ in Rogerson at 280 (set out at [88] above). They are self-evidently matters in the public interest. The conduct that is sought to be investigated arises in the context of private litigation, but that does not make the potentially criminal conduct private in the sense contended for by Mr Johnson and Marlton.

121    Thirdly, it was contended that it was necessary for Villawood to explain why it wants the relevant conduct investigated, and that their failure to do so should weigh against the release.

122    I do not think it is necessarily incumbent on Villawood to say why it wants the allegations I have described investigated. Clayton Utz did tell Mills Oakley in a letter dated 15 April 2026 that “[t]he release of the Harman undertaking is being sought now because of the gravity of the conduct and the fact that the conduct has continued since the judgment of Justice Anderson in August 2025”. So that is the explanation. But I do not regard the failure to say more than that as having any significant bearing on the exercise of the discretion to decide whether or not to release the documents.

The allegations about deletion of documents

123    During the course of his oral submissions, senior counsel for Villawood conceded that he was unable to say what was deleted from the computer and that there is no direct evidence of Mr Johnson’s involvement in the deletions that occurred. In my view, on that basis, there is no special circumstance shown to permit the release of the documents that were said to go to that matter.

DISPOSITION

124    In my view, weighing the factors I have examined in the balance, the public interest in investigating the possibility of the criminal offences referred to above outweighs the public interest in ensuring the confidentiality of documents obtained by way of discovery (or subpoena). In particular, in my view, the offence or offences, if committed, are serious enough to warrant close scrutiny by the AFP. Further, the offences under ss 36 and 43 of the Crimes Act 1914 (Cth) obviously have as part of their evident intention the maintenance of confidence in the judicial process. It is also relevant, as it was in Bailey, that the offences are of a nature which one may readily expect may not be easily detectible by the relevant authorities.

125    I am satisfied, in the circumstances of this case that it is appropriate to make the release orders sought, other than with respect to the allegations about the deleted documents. I will accordingly make an order, the effect of which will be to release Villawood from its Harman undertaking in respect of all the documents in the list described as “Documents in respect of which the Harman release is sought”, save for those which are said only to be relevant to the destruction of documents matter (documents numbered 23, 24, 25, 26, 27, 28, 28A, 29, 30 and 30A), for the purpose of providing them to the AFP.

126    As I said at the hearing, I will reserve the costs to enable the parties to wait and then to consider the overall costs position having regard to what happens in the various other interlocutory applications made in recent times.

Associate:

Dated:    30 September 2026