Federal Court Upholds Legal Professional Privilege Over Compelled Documents

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[NAME] & Consumer Commission v [COMPANY] [2003] FCA 601

[NAME] - inquiry into Part IV contraventions by [NAME] – common law and statutory privilege claimed by [NAME] – denied in parallel circumstances to other litigant by Full Federal Court – other litigant in Federal Court proceedings subsequently obtained special leave to appeal to High Court – claim to privilege maintained by [NAME] pending outcome of High Court proceedings pursued by other litigant – special leave to appeal to High Court granted to other litigant – no injunction sought by [NAME] to restrain inquiry pending outcome of High Court appeal by other litigant – High Court appeal by other litigant upheld – documents produced under compulsion – no waiver of privilege – production not voluntary.

Trade Practices Act 1974 (Cth), s 155 Evidence Act 1995 (Cth), ss 117, 118, 122 Federal Court RulesOrder, 19 Rule 1 [NAME] Commission v [COMPANY] and [NAME] (2001) 108 FCR 123 [COMPANY] & [NAME] v [NAME] Commission (2002) 192 ALR 561 [COMPANY] v [NAME]; [COMPANY] v [NAME] [2002] HCA 50 Woollahra Municipal Council v [NAME] (1994) 33 NSWLR 529 [NAME] v [NAME] (1995) 185 CLR 83 AG Australia [COMPANY] v Burton [2002] NSWSC 170 [NAME] v [NAME] [1913] 2 Ch 469 [NAME] v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 [COMPANY] v National Australia Bank (1987) 16 FCR 85 [NAME] v Corporate Affairs Commission (1990) 20 NSWLR 386 Baker v Campbell (1983) 153 CLR 52 [NAME] v [NAME] (1976) 135 CLR 674 [COMPANY] v Commission of European Communities [1983] QB 878 [NAME] Australia [COMPANY] v Federal Commissioner of Taxation (1999) 201 CLR 49 [NAME] v [NAME] [1999] 201 CLR 1 [COMPANY] v [COMPANY] (No 1) (1997) 41 NSWLR 346 [COMPANY] v Perpetual Trustee [NAME] (Canberra) [COMPANY] (1996) 40 NSWLR 12 Sovereign v Bevillesta [2000] NSWSC 521 The [COMPANY] v [NAME] (1998) 81 FCR 360 [NAME] v Home [NAME] [1981] 2 All ER 485 Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 [COMPANY] v [NAME] (1994) 35 NSWLR 193 Phillips v Walsh (1990) 20 NSWLR 206 Scott v Handley (1999-2000) 58 ALD 373 [NAME] COMMISSION v [COMPANY] AND [APPELLANT] N 1295 OF 2002 CONTI J 18 JUNE 2003 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1295 OF 2002

BETWEEN: [NAME] COMMISSION

APPLICANT

AND: [COMPANY] (ACN [PHONE])

[APPELLANT] OF ORDER: 18 JUNE 2003

[APPELLANT]

THE COURT DECLARES THAT: 1. [NAME] and client legal privilege be upheld in respect of the material identified in paragraph 5 of the Affidavit of [NAME] [NAME] sworn 20 February 2003 ('Privileged Material'). THE COURT ORDERS THAT:

1. The Applicant be restrained from referring to or adducing in evidence or examination in these proceedings any material that: (a) refers to the Privileged Material or the information contained in that material; (b) was created with the use of the Privileged Material; or (c) was based on or derived from the Privileged Material.

2. The Applicant be restrained from using, in relation to these proceedings: (a) any of the Privileged Material; (b) any material that refers to the Privileged Material; (c) any material that was created with the use of the Privileged Material; and (d) any material that was based on or derived from the Privileged Material.

3. The Applicant to pay the [APPELLANT]'s costs of the proceedings the subject of the Notice of Motion filed by the [APPELLANT].

4. The parties have liberty to apply on 3 days notice concerning the scope of relief as contemplated in paragraph 60 of these Reasons for Judgment.

5. No order be made as to the costs of the [APPELLANT]. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1295 OF 2002

BETWEEN: [NAME] COMMISSION

APPLICANT

AND: [COMPANY] (ACN [PHONE])

[APPELLANT] [APPELLANT]

JUDGE: CONTI J

DATE: 18 JUNE 2003

PLACE: [APPELLANT] FOR

JUDGMENT Background 1 This is an application brought by way of Amended Notice of Motion of 14 April 2003 (the original having been filed on 21 February 2003) whereby the [APPELLANT] [COMPANY] ([NAME]) moves to restrain [NAME] Commission ([NAME]) from making use of documents protected by [NAME] in the subject proceedings, being documents which have already been produced by [NAME] under the compulsion of a s 155 Trade Practices Act 1974 (Cth) ('TP Act') notice issued by [NAME] against [NAME]. The proceedings were commenced by statement of claim of [NAME] filed on 5 December 2002 and relate to the alleged endeavour of the respondents to induce, or attempt to induce, a business [NAME] to make an arrangement or arrive at an understanding to the effect that [NAME] and that [NAME] would increase their wholesale price of wheaten flour. The second [APPELLANT] ('Mr [APPELLANT]') has been at all material times the Divisional Chief Executive of the [NAME] division known as '[NAME]'. This proposed arrangement or understanding is said by [NAME] to contain provisions that have the purpose, and were likely to have the effect, of fixing, controlling or maintaining the prices for wheaten flour in contravention of s 45A of the TP Act. 2 The principal question raised in this interlocutory application is whether [NAME], which was claimed by the respondents to attach to certain documents produced to [NAME] under compulsion of law, was waived, either expressly or by necessary implication, when the current state of judicial authority at the time of production of the documents was that any document sought pursuant to a s 155 notice was required to be produced, notwithstanding the subsistence of [NAME]. The documents identified in this application as attracting [NAME] are: (i) a letter from [RESPONDENT] ([NAME]) to Mr [RESPONDENT] dated 31 January 2000 to which was attached a file note prepared by Ms [RESPONDENT] dated 31 January 2000; (ii) a letter from [RESPONDENT] ([NAME]) to Mr [RESPONDENT] dated 4 February 2000; and (iii) a letter from [RESPONDENT] ([NAME]) to Mr [RESPONDENT] dated 10 February 2000. Each of those letters comprise the expression 'privileged material' used in these reasons for judgment. Mr [NAME] was then, and presumably still is, the Chief Executive Officer of [NAME]. 3 The facts, matters and circumstances relevant to the [NAME] application are traversed in affidavits made on 19 and 20 February 2003 by [NAME] and [NAME] on behalf of [NAME] and [NAME] respectively. [NAME] is a member of the firm of [RESPONDENT[NAME]. [NAME] is a senior lawyer employed in the Canberra office of the Australian Government Solicitor. The solicitors have had the care and conduct of the proceedings on behalf of their respective clients. 4 On 23 August 2001, [NAME] issued a notice dated 22 August 2001 under ss 155(1)(b) and s 155(1)(c) of the TP Act to [NAME], the Chief Executive Officer of [NAME] (the [NAME] notice). This notice required Mr [NAME] to produce to the Commission certain documents listed in the schedule to the notice, and for [NAME] to appear before [NAME] on 4 September 2001 to give oral evidence. A copy of that notice is attached to these reasons for judgment. 5 On 24 August 2001, [NAME] issued a notice under ss 155(1)(a) and 155(1)(b) of the TP Act to [NAME] (the [NAME] notice). The [NAME] notice required [NAME] to produce to [NAME] certain documents listed at schedule 1 to the notice, and to provide to [NAME] certain information listed at schedule 2 to the notice. A copy of the [NAME] notice is also attached to these reasons for judgment. 6 Set out below is the full text of subsections (1), (2A) and (5) of s 155 of the TP Act, as in force at the material times: '(1) Subject to subsection (2A), if the Commission, the [NAME] or the [NAME] has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to a designated telecommunications matter (as defined by subsection (9)) or is relevant to the making of a decision by the Commission under subsection 93(3) or (3A), a member of the Commission may, by notice in writing served on [NAME], require [NAME]: (a) to furnish to the Commission, by writing signed by [NAME] or, in the case of a body corporate, by a [NAME] officer of the body corporate, within the time and in the manner specified in the notice, any such information; (b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or (c) to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents. … (2A) A member of the Commission may not give a notice under subsection (1) or an authorisation under subsection (2) merely because: (a) a person has refused or failed to comply with a notice under subsection 32(1) of the Prices Surveillance Act 1983 on the ground that complying with the notice would tend to incriminate the person, or to expose the person to a penalty; or (b) a person has refused or failed to answer a question that the person was required to answer by the member presiding at an inquiry under that Act, on the ground that the answer would tend to incriminate the person, or to expose the person to a penalty; or (c) a person has refused or failed to produce a document referred to in a summons under subsection 34(2) of that Act, on the ground that production of the document would tend to incriminate the person, or to expose the person to a penalty. … (5) A person shall not: (a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; (b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading; or (c) obstruct or hinder an authorised officer acting in pursuance of subsection (2). … (6A) A person who contravenes subsection (5) or (6) is guilty of an offence punishable on conviction: (a) in the case of a person not being a body corporate – by a fine not exceeding $2,000 or imprisonment for 12 months; or (b) in the case of a person being a body corporate – by a fine not exceeding $10,000.' The [NAME] 7 On 29 August 2001, Ms [NAME] wrote to Mr [NAME] in relation to the [NAME]. This letter stated, so far as is material, as follows: 'The documents required by the notice are currently being identified and copied. However, there are a number of issues, which are raised by the terms of the request for documents, which we would like to clarify with you to assist Mr [NAME] in complying with the notice. These issues are as follows:

1. The document requests a number of documents which attract [NAME]. In accordance with the [ADDRESS]'s decision in [NAME] v [NAME], privilege is not a basis for refusing to provide documents required under a section 155 notice. However, we are of course aware that leave has been sought to appeal to the High Court from the Full Federal Court's decision in [NAME] v [NAME] and wish to make clear that Mr [NAME] is not waiving any privilege by producing documents under compulsion of a section 155 notice in circumstances where the current state of the law is that he must produce those documents.

2. All of the documents requested which attract [NAME] were created subsequent to the contravention alleged in paragraph 2 of the notice. Following comments by [NAME] at the Law Council Trade Practices Workshop in Canberra two weeks ago, we understand that the Commission does not intend to require production of privileged documents created after the alleged contravention. Could you please confirm that Mr [NAME] may respond to the notice on this basis. …' Mr [NAME] is an [NAME] Commissioner. As may be inferred from the above, the Federal Court's decision in [NAME] Commission v [COMPANY] and [NAME] (2001) 108 FCR 123 was to the effect that the giving of a notice by [NAME] pursuant to s 155 of the TP Act was inconsistent with [NAME] and that therefore [NAME] could not be availed of so as to resist any such notice. Nonetheless: '…it is worth recording that from the commencement of the Act in 1974, the commission, as a matter of policy, did not press for documents declined on the "basis of a claim for [NAME]". The commission's policy had changed by 2000. However, in making the change, the commission explicitly acknowledged that such documents or information were unlikely to assist investigations. Compulsory disclosure of privileged communications would, in some cases, affect the ability and willingness of corporations and individuals to consult, without inhibition, with lawyers about complex legal issues affecting day to day business. It might also affect the preparedness and freedom of lawyers to advise clients concerning the TPA and especially in matters potentially giving rise to prosecutions' ([COMPANY] v [NAME] Commission (2002) 192 ALR 561 at [109] per [NAME]). 8 On 31 August 2001, Mr [NAME] responded by letter to Ms [NAME] which included the following: 'The Commissioner notes your position on the issue of waiver. … … we understand that the determinant as to whether the Commission will press for production of privileged documents is the likelihood that they will assist the Commission to form the view as to whether or not a contravention of the Act has occurred. Documents describing factual matters are likely to assist the Commission whereas documents setting out legal advice are not. This is consistent with the view expressed in the Commission's published guidelines dated October 2000. Returning to your enquiry as to the section 155 Notice issued to Mr [NAME], the Commission requires production at this time of privileged documents whenever created which are called for under the Notice and which describe or evidence factual matters. The Commission does not require production at this stage of privileged documents in so far as the documents convey legal advice to [NAME]. Would you please inform Mr [NAME] that he should respond to the Notice on this basis.' 9 Ms [NAME] forwarded to [NAME] copies of the documents 'provided by Mr [NAME] in response to the Notice', under cover of a letter of 3 September 2001, whereby [NAME] was put on notice, in similar terms as were set out in the above extracted letter of 29 August 2001, that Mr [NAME] and [NAME] were not waiving 'any privilege by producing documents under compulsion of a s 155 notice in circumstances where the current state of the law was that those documents must be produced', and further that '[i]n determining whether privileged documents are required, we have relied on the clarification of the Commission's views contained in your letter to me dated 31 August 2001'. The bundle of documents thus provided, and which were contended by Ms [NAME] to attract a claim of [NAME], included the privileged material described in [2] above. On the following day, [NAME] conducted an oral examination of Mr [NAME] pursuant to s 155(1)(c) of the TP Act. The transcript of the examination provided by [NAME] to [RESPONDENT] disclosed, according to Ms [RESPONDENT], that the examination was influenced by access to what had been claimed to be privileged material. Due however to confidentiality restrictions which were not removed until the institution of the [NAME] proceedings on 5 December 2002, Ms [NAME] did not obtain a copy of the transcript of interview until 5 January 2003. The [NAME] notice 10 On 5 September 2001 [NAME] of [RESPONDENT] wrote to [NAME] of [NAME] in relation to the [NAME] notice, commencing as follows: 'As you know, I act on behalf of [COMPANY] ([NAME]). I refer to your letter dated 24 August 2001 to [NAME], serving a notice under s 155 of the Trade Practices Act requiring [NAME] to produce documents by 14 September (the Notice). [NAME] has asked me to seek further clarification of the following matters:

1. It is possible that some of the documents requested will attract [NAME]. In accordance with the [ADDRESS]'s decision in [NAME] v [COMPANY] privilege is not a basis for refusing to provide documents required under a section 155 notice. However, we are of course aware that leave has been sought to appeal to the High Court from the Full Federal Court's decision in [NAME] v [COMPANY] and wish to make clear that [NAME] is not waiving any privilege by producing documents under compulsion of a section 155 notice in circumstances where the current state of the law is that it must produce those documents. We assume that the Commission's position on this issue is as outlined in [NAME] [NAME]'s letter to me dated 31 August 2001 (in relation to the notice served on [NAME]). Could you please confirm that [NAME] may respond to the notice on this basis. 2. [NAME] believes that it will be able to produce the documents referred to in paragraphs 1, 3, 12, 25, 26, 27, 28, 29, 30, 31, 32 of Schedule 1 to the Notice by 14 September. The documents listed in paragraphs 33, 34, 35, 36 and 37 have already been provided to the Commission in response to the notice served on [NAME].' The documents secondly identified above as those '… listed in paragraphs 33, 34, 35, 36 and 37…' include the privileged material. 11 By letter dated 7 September 2001, [NAME] responded to the letter of Ms [NAME] of 5 September 2001 from Mr [NAME] of [NAME] at some considerable length. After recording that '… you have sought clarification of various matters relating to the scope of the information and documents sought in the Notice', Mr [NAME] continued as follows: 'As discussed, the Commission is prepared to address your concerns by limiting production under specific paragraphs of the Schedules to the Notice as detailed below. The purpose of this letter is not to alter or vary the Notice but simply to limit the number of documents required to be produced pursuant to the Notice on 14 September 2001. In this regard the Commission does not release [NAME] from the requirement to provide the documents at a later date if pressed to do so. [NAME] The Commission notes your advice that [NAME] does not waive any privilege by producing documents under compulsion of a section 155 Notice. …' After then setting out explanations and answers on a number of queries raised by Ms [NAME] concerning what may be described as factual matters, the letter concluded initially as follows: 'Additional Information In limiting the information which the Commission requires at this stage, the Commission maintains the position that it may press for the provision of additional documents falling within the terms of the Notice at a later point in time. However, the search for and provision of such additional documents should be held in abeyance until further notice. …' 12 On 14 September 2001, Ms [NAME] wrote again to Mr [NAME] of [NAME] and stated that certain documents requested by paragraphs 33, 34, 35, 36 and 37 of Schedule 1 to the [NAME] notice (see [10] above) had already been produced by Mr [NAME] in response to the [NAME] notice. As I have already mentioned, three of those five documents comprise the privileged material. The events which occurred after the initial responses to the [NAME] and [NAME] notices 13 The privileged material was the subject of extensive use by [NAME] in the context of its investigations into the affairs of [NAME]. The extent of that use was described by Mr [NAME] in his affidavit of 19 March 2003 as follows: 'Use of the Material by the Commission 8. On 4 September 2001 the Commission conducted an oral examination of [NAME]. During the conduct of that examination, at which I was [NAME] throughout, Commissioner [COUNSEL] and Counsel for the Commission made use of the three documents or information derived therefrom to ask certain questions of Mr [NAME].

9. On 14 December 2001 the Commission conducted an oral examination of [NAME] [APPELLANT], the [APPELLANT] in these proceedings. During the conduct of that examination, at which I was [NAME] throughout, Commissioner [COUNSEL] and Counsel for the Commission made use of the three documents or information derived therefrom to ask certain questions of Mr [APPELLANT].

10. On 17 December 2001 the Commission conducted an oral examination of [NAME], an employee of [COMPANY]. During the conduct of that examination, at which I was [NAME] throughout, Commissioner [COUNSEL] and Counsel for the Commission made use of the three documents or information derived therefrom to ask certain questions of Mr [NAME].

11. On 17 December 2001 the Commission conducted an oral examination of [NAME], an employee of [COMPANY]. During the conduct of that examination, at which I was [NAME] throughout, Commissioner [COUNSEL] and Counsel for the Commission made use of the three documents or information derived therefrom to ask certain questions of Mr [NAME].

12. On 18 December 2001 the Commission conducted an oral examination of [APPELLANT], an employee of [COMPANY], the [APPELLANT] in these proceedings. During the conduct of that examination, at which I was [NAME] throughout, Commissioner [COUNSEL] and Counsel for the Commission made use of the three documents or information derived therefrom to ask certain questions of Mr [NAME].

13. On 22 February 2002 the Commission conducted a voluntary interview with [NAME]. During the conduct of that interview, at which I was [NAME] throughout, [NAME] and [NAME] of the Commission's staff made use of the three documents or information derived therefrom to ask certain questions of Mr [NAME].' 14 Meanwhile on 7 November 2001, the High Court heard applications, brought in its original jurisdiction, by [COMPANY] ([NAME]) and [COMPANY] ([NAME]) and [NAME] (Australia) [COMPANY] ([NAME]) for interlocutory injunctions to restrain [NAME] and its Chairman, [NAME] from requiring those applicants to produce documents, to which [NAME] was asserted to attach, in response to notices issued by [NAME] pursuant to s 155 of the TP Act. [NAME] granted the injunctions sought until 15 February 2002, being the date upon which the application to the High Court for special leave to appeal from the Full Federal Court's decision in [NAME] Commission v [COMPANY] and [NAME] (2001) 108 FCR 123 was due to be heard. On the same day, [NAME] wrote to [RESPONDENT] as follows: 'Investigations to date suggest that [RESPONDENT] [the [NAME]] may be in the possession of two categories of documents relevant to the Commission's investigations and (sic) namely: (1) Documents created by or provided to [RESPONDENT] in relation to matters arising from the conduct of Mr [NAME] [APPELLANT] in late 1999 and early 2000. The Commission understands that in this regard representatives of [RESPONDENT] conducted interviews of Mr [APPELLANT] in respect to his conduct and may have briefed Counsel with respect to the matters. As you are aware certain documents meeting this description were provided by [NAME] in response to notices issued pursuant to section 155 of the [Act]. (2) Documents provided to or created by [RESPONDENT] and relating to a review, or audit (and including interviews or other enquiries) undertaken by [RESPONDENT] in early to mid 2001 on behalf of [NAME] regarding possible issues arising under section 45 of the Act. … The Commission appreciates the sensitivities of requesting information in the possession of [NAME] and is conscious of wider policy implications arising from such requests. Having considered these issues, however, and the nature of the matters under investigation, the Commission remains desirous of obtaining the relevant documents. In making any such request, consistent with previous communications, the Commission would limit any such request to documents evidencing or referring to factual matters rather than the provision of legal opinion. The Commission may also consider limitation concerning documents created or brought about by reason of the Commission's investigation. The Commission would not seek documentation which has been previously provided by [NAME]. …' 15 On 15 February 2002, the respondents in the [NAME] litigation were granted special leave to appeal to the High Court. At the same hearing, the injunctions previously obtained by [NAME], [NAME] and [NAME] were extended until further order. Nearly nine months later on 7 November 2002, the High Court in [NAME] held that s 155 of the TP Act did not authorise the production of documents to which [NAME] attaches, and set aside the orders of the [ADDRESS] of the Federal Court made on 16 March 2001. On the same day, the High Court in [COMPANY] v [NAME]; [COMPANY] v [NAME] [2002] HCA 50 answered in the negative the question, submitted in a case stated by [NAME], [NAME] and [NAME], whether the production of documents to which [NAME] attached, and was maintained by the compelled party, could be compelled by [NAME] pursuant to s 155 of the TP Act. 16 On 8 November 2002 Mr [RESPONDENT] of [NAME] informed [NAME] of [RESPONDENT] that [NAME] was considering how it would deal with the privileged material, and confirmed that [NAME] was minded to bring proceedings against the respondents in respect of what was said to be the [APPELLANT] incident alone. Ms [APPELLANT] responded by asserting that the use which [NAME] may have made of the privileged material had caused the investigation into the [APPELLANT] incident to be 'irretrievably tainted'. Mr [APPELLANT] replied to the effect that [NAME] had 'strong evidence in relation to the [APPELLANT] incident other than the material for which privilege is claimed and could proceed on the basis of this evidence alone'. 17 On 25 November 2002 [NAME] wrote to [NAME], the Chairman of [NAME], in relation to the [NAME]'s investigation of [NAME]. On the basis of the High Court's decision in the [NAME] case, Ms [NAME] requested the immediate return of all copies and extracts of the privileged material provided to [NAME] in response to the [NAME] and [NAME] notices (as I have earlier indicated, the material was in fact formally produced in relation to the [NAME] notice). Ms [NAME] also sought undertakings from [NAME] in relation to identification and destruction of all documents and records which referred to or made use of, or were based upon or which were in any way derived from, or influenced or affected by, the privileged material or information provided to [NAME], and the use, dissemination, communication, reference to and reliance upon any of the privileged material or any material derived from or influenced or affected by the privileged material, in connection with any investigation or in any other way whatsoever. 18 Also on 25 November 2002, Ms [NAME] wrote to Mr [NAME] of [NAME] and sought an urgent response as to the steps which [NAME] proposed to take to identify and destroy documents which referred to or made use of, or were in any way derived from or influenced or affected by, the privileged material and information provided to [NAME] pursuant to the [NAME] and [NAME] notices, including s 155 examination transcripts and [NAME] [NAME] documents such as memoranda to the [NAME] and to the Commissioners. 19 The written correspondence of Ms [NAME] of 25 November 2002 was the subject of a tentative written reply on 2 December 2002 from Mr [COUNSEL] of the Australian Government Solicitor, in which Mr [COUNSEL] acknowledged receipt of that correspondence and indicated his 'hopes to be in a position to respond to [Ms [NAME]] in writing by 4 December 2002'. 20 On 5 December 2002, the [NAME] proceedings were instituted against the respondents by the filing of the statement of claim of [NAME]. Accompanying service of the court documents was a letter by Mr [NAME] affirming that [NAME] would not provide [NAME] with the undertakings sought in Ms [NAME] correspondence of 25 November 2002, but nonetheless assuring [NAME] that [NAME] would return the originals and copies of the privileged material produced to [NAME], save for copies of Ms [NAME] letter to Mr [NAME] dated 31 January 2000 and Ms [NAME] letter to Mr [NAME] dated 4 February 2000 together with attachments. Mr [NAME] disclosed that those copy documents had been used in the course of [NAME]'s investigations, and that they formed part of the transcript of the oral examination of Mr [NAME] conducted pursuant to s 155 of the TP Act on 4 September 2001, and additionally formed part of the Note for File of the voluntary interview by [NAME] of Mr [NAME] held on 22 February 2002, being an attachment thereto. Mr [NAME] further stated that [NAME] was checking whether there were any extracts from the privileged material which then formed part of other documents held by [NAME]. 21 On 18 December 2002, Ms [NAME] wrote to Mr [NAME], in response to his letter of 5 December 2002, as follows: '… In respect of the two exceptions, namely, the copies of Privileged Documents 1 and 2 which form part of the section 155 transcript of the interview with Mr [NAME] held on 4 September 2001 and which form part of the Note for File of the voluntary interview with Mr [NAME] held on 22 February 2002, I confirm that these copies are being retained by [NAME] so as to preserve the integrity of the transcript and the Note for File respectively. … It is regrettable that the Commission did not respond to my letter dated 26 November 2002 and instead issued proceedings without any discussion or consultation. To the extent that the Commission's allegations are based on evidence which is privileged or derived from privileged material, the Commission has compounded the damage caused by its access to and use of the privileged material. It is also regrettable that the Commission seeks now to assert a waiver of privilege, when the existence of privilege has been recognised in numerous conversations over the past 18 months by Commission officers, including the conversation which is referred to in your letter between [NAME] and me following the [NAME] decision. It is difficult to see how this conduct is consistent with the Commission's commitment to act as a model litigant. In relation to the matters contained in your letter, [NAME] absolutely rejects the Commissioner's assertion that following [NAME]'s production of privileged documents under the compulsion of a section 155(1)(b) notice it acted inconsistently with or waived the privilege attaching to the documents produced by either: • "allowing" the Commission to continue to conduct its investigation; or • failing to seek a High Court injunction. [NAME] has at all times asserted the privilege attaching to the privileged material and acted consistently with the existence of the privilege. The privileged material was provided to the Commission only after correspondence with the Commission in which the Commission indicated that it required the production of privileged material pursuant to section 155 notices if it contained references to factual material. Following the High Court decision in the [NAME] case, [NAME] promptly requested that the Commission immediately return the privileged material and provide undertakings about the use of derivative material. I note that [NAME]'s urgent request for the return of documents and undertakings from the Commission followed my conversation with [NAME] who had rung me the day after the [NAME] decision was handed down to indicate that the Commission was preparing a letter outlining how it proposed to deal with the privileged material in view of the High Court's decision. I am instructed by [NAME] to require the immediate return of all of the privileged material provided to the Commission and to again request that the Commission provide the undertakings sought in my letter dated 26 November 2002. If these undertakings are not provided, [NAME] will seek appropriate orders from the Federal Court. …' 22 By letter dated 20 December 2002 Mr [NAME] responded to Ms [NAME] letter of 18 December 2002, inter alia, as follows: 'The Commission remains of the view that [NAME]'s conduct in relation to the production of the documents was inconsistent with the retrospective operation of the privilege now asserted by you. The Commission's action in considering the Privileged Documents as part of its proceeding with the investigation in the period up to the hearing of the application to the High Court for special leave to appeal and, following the [NAME] of that leave, until the High Court's decision in the [NAME] was fully consistent with the basis on which [NAME] produced the documents. [NAME] was well aware that the investigation was continuing during this period and there was no suggestion by [NAME] or the Commission that the Privileged Documents should/would be put to one side and not used pending the [NAME] decision. The Commission is not aware of any communication by Commission officers prior to, or since, the production of the documents, including the conversation with [NAME] following the [NAME] decision, which suggested that the Privileged Documents would not be/had not been used for the purposes of the Commission's investigation in the period pending the High Court's decision. Further, the Commission is of the view that its conduct in no way conflicts with the Model Litigant Policy.'

Summary of [NAME]'s submissions to the Court 23 [NAME] contended that because [NAME] had been at all material times claimed in respect of the privileged materials, [NAME] had been neither expressly nor impliedly waived, 'implicitly' being used in the sense of 'imputed'. Mr [COUNSEL], who appeared for [NAME], submitted that the production of documents under compulsion, or under the threat of compulsion, does not in principle amount to waiver of the privilege attaching to the documents, and cited in support of that submission Woollahra Municipal Council v [NAME] (1994) 33 NSWLR 529 (at 540) (Giles J), where it was held that [NAME] had not been waived by production of documents pursuant to a demand made under compulsion of the Local Government Act 1919 (NSW). That exception to the imputation of implied waiver was subsequently cited by the High Court with approval in [NAME] v [NAME] (1995) 185 CLR 83 (at 95) ([NAME], [NAME] and [NAME]), (at 110) ([NAME[NAME]) and (at 122-123) ([NAME[NAME]); (at 123) [NAME[NAME] (in the minority with [NAME[NAME]) observed in my opinion uncontroversially that [NAME[NAME] treated as very significant the circumstance that an alleged implied waiver of [NAME] involved making documents available to enable the recipients to carry out their statutory duties and that there existed statutory compulsory processes. I agree'. It was further submitted that the combined operation of s 155 of the TP Act and the Full Federal Court's decision in [NAME], for the period of time during which that decision remained authoritative,carried the consequence that the production to [NAME] of the privileged material had occurred under compulsion, and that therefore there had not thereby taken place any waiver of privilege. Reference was made to the fact that [NAME] had accepted from the outset the respective positions of [NAME] and Mr [NAME] that no waiver of the privilege was intended by the production of those documents, and that it was only following upon the High Court's reversal of the Full Federal Court's decision in [NAME],by finding that privilege could not be maintained in answer to a s 155 notice, that [NAME] first asserted that both [NAME] and Mr [NAME] were not entitled to maintain that claim of privilege. 24 It was then contended by [NAME] that the appropriate relief to be granted, in circumstances where privileged or otherwise confidential information has been unlawfully obtained, should be formulated in accordance with the principles and forms of relief enumerated by [NAME] in AG Australia [COMPANY] v Burton [2002] NSWSC 170 and also at 454, a case involving breach of a duty of confidentiality owed to the plaintiff by the voluntary provision of material in a witness statement concerning certain litigation. [NAME] submitted that reference by [NAME] to [NAME] v [NAME] [1913] 2 Ch 469 indicated that the principles concerning the appropriate relief apply as much to privileged documents as they do to other kinds of confidential information. It was emphasised that [NAME] had sought orders to similar effect, on the basis that [NAME] is not entitled to retain any benefit it may have received, or may in the future receive, from its access to [NAME]'s privileged material. Consequently, so [NAME]'s submissions continued, such orders should require 'at the very least' the destruction of first, all copies of the privileged documents, secondly, any notes or memoranda which contain material derived from those documents, and thirdly the transcripts of examinations or interviews in relation to which (on [NAME]'s express concession) [NAME] had made use of all such documents. It was further contended that [NAME] was entitled to an order preventing [NAME], and its Commissioners, employees and [NAME], having knowledge of the information contained in the privileged material, from being involved in or consulted in relation to, the subject matter of the proceedings against [NAME]. Summary of [APPELLANT]'s submissions to the Court 25 Mr. [RESPONDENT] of Counsel, who appeared for the second [APPELLANT] Mr [APPELLANT], adopted the submissions of Mr [APPELLANT] as to the operation of the doctrine of [NAME] in Australia and contended that there had been no intentional or imputed waiver established on the facts and circumstances placed in evidence before the Court. It was submitted on behalf of Mr [APPELLANT] that the disclosures which occurred in the [NAME] case on the part of [NAME] and Mr [NAME] was not caused by any purported reliance on that material in order to justify their position or to dissuade [NAME] from commencing the [NAME] or any related litigation, and further that [NAME] did not act inconsistently with the claim for privilege by refraining from taking any action against [NAME] similar to that pursued by [NAME] and the other companies in the High Court proceedings referred to in [14] above. It was also contended on behalf of Mr [APPELLANT] that for the Court to find that [NAME] or Mr [APPELLANT] had acted inconsistently with the claim for privilege, by failing to commence proceedings in the original jurisdiction of the High Court to restrain [NAME] from compulsorily acquiring the privileged materials, pending determination of the special leave application in the [NAME] litigation, would impose 'too high a standard even for a corporation which might be thought to have the required resources to do so'. I should formally record that [NAME] did not object to Counsel for Mr [APPELLANT] making submissions, notwithstanding that Mr [APPELLANT] was not an applicant in relation to the proceedings the subject of the Amended Notice of Motion filed on 14 April 2003 for the relief sought by [NAME]. Summary of [NAME]'s submissions to the Court 26 [NAME]'s case in response may be summarised by the proposition that any privilege attaching to the correspondence listed in [2] above had been waived because of the principle of imputed or implied waiver. Alternatively it was contended that there had been [COMPANY] waiver entitling [NAME] to use the documents and the information derived therefrom with respect to its investigation and possible proceedings flowing from the investigation. It was contended that by reason of [NAME] and Mr [NAME] having acted inconsistently with any entitlement to claim privilege, to the extent of failing to initiate proceedings of the kind pursued in the High Court in the [NAME] litigation or [NAME] and [NAME] litigation, [NAME] became thereby entitled or enabled to put to appropriate use the documents, and the information susceptible to being derived therefrom. By 'appropriate use', I refer of course to use in the context of any investigation into conduct of [NAME] and Mr [APPELLANT] that may have constituted a contravention of the TP Act, and to do so in the further context of any proceedings open to be instituted by [NAME] pursuant to that investigation. The following circumstances in particular were contended by [NAME] to give rise to waiver of privilege on the part of [NAME], given that [NAME] had acted at all material times in accordance with the state of the applicable law and legal principles concerning the operation of s 155 of the TP Act, exemplifying thereby in particular the Full Federal Court's decision in [NAME]: (i) no constraint was sought to be placed by [NAME] and Mr [NAME] on the use of the relevant documents by [NAME], whether by injunction or otherwise; (ii) in particular, no step or steps were taken by [NAME] and Mr [NAME] to obtain appropriate injunctions against [NAME], as occurred at the instance of [NAME] and [NAME] in their dispute with [NAME], notwithstanding the context of the Full Federal Court's decision in [NAME], and the special leave application made to the High Court pursuant thereto; nor were any relevant steps taken by [NAME] and Mr [NAME] after [NAME] and [NAME] had obtained interim injunctive relief against [NAME] from the High Court, or after special leave to appeal was granted by the High Court in [NAME]; (iii) [NAME] and Mr [NAME] had produced documents to [NAME] that fell outside the ambit of those requested by [NAME]'s s 155 notice, yet they took no steps to mask, seal or otherwise prevent the use of those portions which conveyed legal advice, whereof [NAME] had not compelled production; reference was made to the decision of the Federal Court in [COMPANY] v [COMPANY] (BC9506137) (27 April 1995), where Lockhart J observed that '[i]t is well established that parts of documents may be masked so as to attract [NAME]'; (iv) following the [NAME] of interim injunctions against [NAME] in favour of [NAME] and [NAME], [NAME] had indicated that it would not press for further material that might have been the subject of [NAME], yet no attempt was made by [NAME] or Mr [NAME] to restrain [NAME] from continuing to use the documents which had already been produced from the custody of [NAME] or Mr [NAME] to [NAME], or to use the information capable of being derived therefrom; (v) [NAME] and Mr [NAME] were aware that [NAME] required the privileged materials purportedly pursuant to its powers of investigation, and that those documents were likely to play a role in the [NAME] investigation, and any subsequent proceedings which might be taken by [NAME] against [NAME] (and possibly Mr [NAME]) for contraventions of the TP Act; (vi) at the time of providing the privileged materials to [NAME], neither [NAME] nor Mr [NAME] asserted to [NAME] that in the event that the High Court ultimately determined in the context of [NAME] that s 155 of the TP Act did not entitle [NAME] to demand documents the subject of [NAME], they would adopt the stance that the [NAME]/[NAME] investigation, or any proceedings taken by [NAME] pursuant thereto, was unlawful or an abuse of process, or otherwise 'irretrievably tainted', such that [NAME] should be prevented by injunction from prosecuting any such proceedings; (vii) various persons within [NAME], including its [NAME], have retained knowledge of the contents of the privileged documents, and [NAME] has regulated its conduct in relation to the investigation and the commencement of proceedings in reliance upon the documents and the information contained therein ([NAME] v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347 (at 356-358); [COMPANY] v National Australia Bank (1987) 16 FCR 85 (at 87.5); and I would add that it was also submitted by [NAME] that the injunctions sought by [NAME]'s notice of motion, as to restraint upon [NAME] using the privileged material, constituted more than the 'adducing of evidence', as that expression is used in the Evidence Act 1995 (Cth) but the ultimate significance of that submission was not apparent. 27 Reliance was thus placed by [NAME] upon the doctrine of waiver, and the following dictum of Handley JA in [NAME] v Corporate Affairs Commission (1990) 20 NSWLR 386 (at 413A): 'In my view, waiver of privilege by a client in producing or permitting his solicitor to product privileged documents to an inspector would constitute a final waiver of the privilege with respect to those documents for all purposes. The client ought to have in contemplation the uses which the inspector may make of those documents. These will include showing them to witnesses, reproducing them, in whole or in part, or otherwise referring to their contents in his report, that the report may be printed and published by the Minister or the Ministerial Council… and that finding of fact by the inspector will be prima facie evidence in civil proceedings." I interpolate to observe that the High Court ([NAME], [NAME] and [NAME[NAME]) in [NAME] observed at [35] that '…it may be that [NAME] would now be decided differently'. Nor was any application made to the Court, so [NAME] further submitted, to prevent [NAME] gaining access to and using the documents, notwithstanding an awareness on the part of [NAME] concerning the reliance which [NAME] was likely to place upon the documents in its investigation. That submission affords no significance to the circumstance that [NAME] has acted promptly, following upon the reversal by the High Court of the Full Federal Court's decision in the [NAME] litigation. Principles arising for consideration and application 28 A convenient starting point is the precept that [NAME] at common law is a 'practical guarantee of fundamental rights' ([NAME] at 121 per [NAME[NAME]), and is not confined to judicial or quasi-judicial proceedings (Baker v Campbell (1983) 153 CLR 52). [NAME]'s processes undertaken to date in relation to the [NAME], and also [APPELLANT] and [NAME], pursuant to s 155 of the TP Act, appear to have relevantly been neither judicial nor quasi-judicial. The jurisprudence of Australia is replete with explanations and illustrations of the precept of [NAME], and its implications. For instance in [NAME] v [NAME] (1976) 135 CLR 674, the following dicta appears in the joint judgment of [NAME] and [NAME[NAME] (at 685): 'The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by [NAME], the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. As a head of privilege, [NAME] is so firmly entrenched in the law that it is not to be exorcised by judicial decisions.' 29 In [NAME] v [NAME[NAME] as one of the majority of the High Court spoke (at 114) of '[t]he importance of the principle that a person should be able to seek relevant legal advice and assistance without apprehension of prejudice', and his Honour further observed (at 115) that the principle '…could not even be sacrificed to promote the main purpose of the existence of courts of justice, namely the discovery, vindication and establishment of truth'. In more recent times, [NAME] in [NAME] (at 584) cited with approval what was said byAdvocate-[NAME] in [COMPANY] v Commission of European Communities [1983] QB 878 (at 913) in relation to the principle as follows: 'Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a [NAME] in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.' 30 In [NAME] Australia [COMPANY] v Federal Commissioner of Taxation (1999) 201 CLR 49, the High Court resolved, prior to the events the subject of the [NAME] notice of motion, the issue whether client legal privilege under the Evidence Act, as distinct from the common law of [NAME], applied derivatively to ancillary legal processes such as the discovery, production and inspection of documents, in contrast to the adducing of testimony in the 'court room'. [NAME], [NAME] and [NAME[NAME] held that ss 118 and 119 of the Evidence Act applies only to the adducing of evidence and therefore not to any such ancillary processes (at [32-34]). The expression 'adducing of evidence' appearing in s 122 of the Evidence Act is not defined, and its limits did not fall for definition in [NAME], though it was discussed in [NAME] by way of contrast to the ancillary processes of discovery and inspection of documents. [NAME[NAME] agreed at [64], and likewise Callinan J at [149]. Further, [NAME[NAME], [NAME] and [NAME[NAME] (at [60]-[61], and [NAME[NAME] at [166]-[167]), remoulded the operation of [NAME], so as to subject the same to the dominant purpose test as expounded in the minority view of [NAME[NAME] in [NAME] v [NAME] at 677, and thus to the exclusion of the sole purpose test. 31 In the light of the High Court's reasons for judgment in [NAME], the distinction should be drawn between [NAME] at common law and client legal privilege under the Evidence Act(see in that regard [6], [16], and [23] of the reasons for judgment of [NAME[NAME], [NAME] and [NAME[NAME]). One aspect of the distinction for [NAME] purposes is that '…the provisions of s 122 [of the Evidence Act] as to the circumstances in which privilege may be lost are not identical to the corresponding common law principles' ([NAME] v [NAME] [1999] 201 CLR 1 at [23] (per [NAME], Gaudron, [NAME] and [NAME[NAME]) (the High Court judgments in [NAME] and [NAME] were delivered contemporaneously). 32 [NAME], and [NAME[NAME] observed in [NAME] that '[o]ther legislatures have not yet enacted similar legislation' to the Evidence Act (ie legislatures other than those of the Commonwealth, the State of New South Wales and the Australian Capital Territory), and that '[f]urthermore, the legislation, even in the jurisdictions where it applies, in its terms leaves untouched certain areas in which the privilege may operate', and that therefore 'in such a setting, there is no consistent pattern of legislative policy to which the common law in Australia can adapt itself' (at [23]). [NAME[NAME] observed to similar effect that he '…would reject the theory that [the Evidence Act] operates to alter the common law, so as in some way to make its provisions applicable to circumstances other than the adducing of evidence' (at [44]), being an observation consistent with the view of the joint judgment of [NAME[NAME], [NAME] and [NAME[NAME]. 33 The dichotomy of operation of client legal privilege and [NAME], since the coming into force of the Evidence Act, is of significance in the circumstances of this case because the relief sought is not [COMPANY] to preventing the giving or adducing of evidence in the 'courtroom'. The process of inquiry by [NAME] under s 155 is not yet apparently completed. Not only does [NAME] seek to restrain [NAME] from 'adducing' evidence of the privileged material but also from 'referring, disseminating, communicating or making use of' the privileged material. Consequently, it becomes appropriate to consider the [NAME] application by reference to relevant principles of the common law, as well as to the operation of the Evidence Act. 34 The Evidence Act regulates client legal privilege by imposing a 'dominant purpose' test, in the context of resolving whether privilege attaches to a relevant communication or document.Thus ss 118 and 119 provide respectively as follows: '118. Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer; or (b) a confidential communication made between 2 or more lawyers acting for the client; or (c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer; for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 119. Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and [NAME], or between a lawyer acting for the client and [NAME], that was made; or (b) the contents of a confidential document (whether delivered or not) that was prepared; for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.' 35 In s 117(1) of the Evidence Act, 'confidential document' is defined to mean a document, 'prepared in such circumstances that, when it was prepared (a) the person who prepared it; or (b) the person for whom it was prepared; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law'. The meaning of a 'confidential communication' is defined by s 117(1) in similar terms. A confidential document would normally of course extend to a document embodying legal advice. Both definitions are here material. 36 Loss of client legal privilege is provided for in s 122 of the Evidence Act, and stipulates as follows, so far as is presently material: '122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the [NAME] concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a [NAME] has knowingly and voluntarily disclosed to [NAME] the substance of the evidence and the disclosure was not made: … (c) under compulsion of law; … (4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the [NAME] to [NAME] other than: (a) a lawyer acting for the [NAME] …' 37 The relationship between subs 122(2) and (4) was considered by [NAME] in [COMPANY] v [COMPANY] (No 1) (1997) 41 NSWLR 346 (at 351), his Honour holding that both subsections have discrete fields of operation in that: '… a disclosure by a [NAME] itself or by an employee or agent of the [NAME] (or by any other person within the s 117 definition of "client" or "party") is governed by subs (2) and not by subs (4), and a disclosure by any other person or entity is governed by subs (4) and not by subs (2).' I would observe that the disclosure by [NAME] of the privileged material was made in circumstances governed by subs (2) of s 122, namely under compulsion of law, being the compulsion inherent in the service by [NAME] of the s 155 notices upon [NAME] and Mr [NAME], and in the light of the Full Federal Court's determination in [NAME] which prevailed at the times of disclosure. 38 In [COMPANY] v Perpetual Trustee [NAME] ([COMPANY] (1996) 40 NSWLR 12, in the context of the loss of privilege provisions of s 122 of the Evidence Act, [NAME[NAME] gave (at 22) an illustration of the distinction between a voluntary disclosure and a disclosure made under compulsion of law: 'I assume that the word 'voluntary' is intended to mean something other than "under compulsion of law", which appears in par (c). I think the distinction is that the disclosure was made voluntary, in the sense that it was not made by way of mistake, it being possible that a disclosure may be made "knowingly" yet by way of mistake and, accordingly, perhaps not voluntarily.' 39 It has also been held that whatever may be the precise limits of the words 'knowingly and voluntarily', where used in s 122 of the Evidence Act, the same '…do not apply in a case where everything indicates an intention to claim privilege in respect of the document and what has gone wrong is attributable to sheer inadvertence or carelessness' (Sovereign v Bevillesta [2000] NSWSC 521 at [23] per Austin J). [NAME] have sought comfort from that dictum, because of the degree of uncertainty or ambiguity which may be distilled in the circumstances of the communications between [NAME] and [NAME], which have been extracted and/or summarised in [7-12] above. I do not think that the disclosure of documents made by [NAME] to [NAME] could be described as 'inadvertence or carelessness'. The respondents pointed out further that the voluntary disclosure contemplated by s 122 is the disclosure of the 'substance of the evidence', to cite the subs 122(2) expression earlier extracted, and that the test has been described as a 'quantitative one, which asks whether there has been sufficient disclosure to warrant loss of the privilege' (The [COMPANY] v [NAME] (1998) 81 FCR 360 at 371 per [NAME], [NAME] and [NAME]). [NAME] submitted that in the events which happened, its conduct and that of Mr [NAME] did not fall foul of any of these tests. I should record, incidentally, that no cross-examination was undertaken by [NAME] of [NAME] of [RESPONDENT] in relation to the production of the documents in question to [NAME] on behalf of either [NAME] or Mr [NAME], notwithstanding the comprehensive nature of them. 40 As to [NAME]'s case of waiver on the part of [NAME] and Mr [NAME], although [NAME] is obviously an important right deserving of special protection, it is of course a right which may be waived by the party otherwise entitled to the privilege, in circumstances where that party performs an act which is inconsistent with the confidence otherwise susceptible to preservation, irrespective of the subjective intention of the party prima facie entitled otherwise to the privilege ([NAME] v [NAME] at [28-29] per [NAME[NAME], [NAME] and [NAME]). Waiver in any such circumstances may be in principle express or implied, deliberate or inadvertent ([NAME] v Home [NAME] [1981] 2 All ER 485). In Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 [NAME] and [NAME] (at 487) described the circumstances in which waiver of privilege may occur as follows: 'A litigant can of course waive his privilege directly through intentionally disclosing protected material. He can lose that protection through waiver by implication. An implied waiver occurs when, by reason of some conduct on the privileged holder's part, it becomes unfair to maintain the privilege.' 41 The circumstances in [NAME] provide an unusual but nevertheless possibly relevant example of the objective nature of the test of waiver of privilege, and its application. Those circumstances were that a solicitor, who had disclosed privileged material of a [NAME] to the [COMPANY] of New South Wales for the [COMPANY] purpose of influencing the Society in relation to its investigation of a complaint made against the solicitor by that [NAME], was held not to have been entitled to claim privilege in respect of the material so provided to the [COMPANY], in the context of subsequent litigation between the solicitor and the [NAME]. In relation to the circumstances giving rise to that litigation, the Evidence Act (NSW) had not yet taken effect, the commencement whereof having been on 1 September 1995. The following passages in the joint majority judgment of [NAME], [NAME] and [NAME] in [NAME] describe the unusual circumstances in which [NAME] (ie at common law) may be lost and in which issues of fairness in a common law context as to maintaining the privilege may be rendered material: 'It is clear that there has been no express or intentional general waiver by Mr [NAME] of [NAME] in the [NAME] case. Any waiver of the privilege as against the [NAME], if there has been one, must have resulted from Mr [NAME] disclosure of the relevant documents to an officer (Ms [NAME]) of the [COMPANY]. That disclosure was for the [COMPANY] purpose of dealing with inquiries made on behalf of the [COMPANY] in relation to the complaint which had been made against Mr [NAME] by Mr [NAME] and was on the express basis that the documents would not be shown to anyone else. It could not properly be seen as constituting an express or intentional general waiver of [NAME] or as destroying the confidentiality which is necessary for its maintenance.

Accordingly, if there was a waiver of the privilege as against the [NAME], it was a waiver imputed by operation of law in the particular circumstances. (95) … Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a [COMPANY] actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether "fairness requires that his privilege shall cease whether he intended that result or not". That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be [COMPANY] so that it applies only in relation to particular persons, materials or purposes. (96) … It follows that the critical question in the [NAME] case is whether Mr [NAME] disclosure of the privileged documents to the [COMPANY] gave rise to a situation where ordinary notions of fairness required that he be precluded from asserting that those documents were protected from production for inspection by the [NAME] in the related Equity proceedings between the [NAME] and the [NAME]. (98) … In the Court of Appeal, both [NAME] and [NAME] concluded that the effect of the delivery of the relevant documents to the [COMPANY] was that it would be unfair to permit reliance by Mr [NAME] upon [NAME] to prevent those documents being made available for inspection by the [NAME]. Their Honours approached the question of fairness on the basis that, notwithstanding that it was at the request of Ms [NAME]. In that, they were fully justified. It is true that the [COMPANY] possessed powers of compulsion. It is also true that a failure by a solicitor to respond adequately to a complaint of professional misconduct might, in some circumstances, be seen by the [COMPANY] as itself constituting such misconduct. (100) … The disclosure of the relevant documents to the [COMPANY] was not restricted to perusal by Ms [NAME]. Clearly, the documents were handed over on the understanding that Ms [NAME] and other officers of the [COMPANY] could make whatever [NAME] use of them was thought appropriate in dealing with the various aspects of Mr [NAME] complaint. Presumably, they played some part in procuring that result. In that regard, it is relevant to note that it has not been suggested that Mr [NAME] provided any other written statement to the [COMPANY] in answer to the complaint against him.' (101) The circumstances in [NAME] thus involved a voluntary production of documents to the (third party) [COMPANY], albeit for a [COMPANY] purpose of Mr [NAME], such as to have constituted an imputed waiver of privilege at common law. That was because having done so to service his own interests, ordinary notions of fairness were found to have precluded Mr [NAME] reliance upon privileges. The respondents here contend that fairness should work in a sense conversely in their favour, because of the retroactive operation of the authority of the High Court's subsequent decision in [NAME] on the occasions when they produced the privileged material, and when they were questioned in relation thereto. 42 In [NAME], the Chief Minister of the Australian Capital Territory supplied documents containing legal advice relating to the Government's conduct in certain already comprised litigation to a member of the Legislative Assembly of the Territory. After considering those documents, the member returned the copies to the Chief Minister, but retained the covering letter. The covering letter, without the legal opinions, was forwarded by the member to the litigant who originally commenced the compromised proceedings against the Government. In the belief that the legal opinions identified in the covering letter might have been defamatory, the litigant applied for preliminary discovery of those opinions in the Supreme Court of the Australian Capital Territory. In the course of their majority judgment, [NAME[NAME], [NAME] and [NAME[NAME] (at 13-15) made the following observations of potential significance to issues of implied waiver arising from inconsistent conduct: 'It is inconsistency between conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege … Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the objective intention of the party who has lost the privilege. In [NAME] v [NAME] this court considered a case in which there was disclosure of a privileged communication to a third party, for a [COMPANY] and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. … Disclosure by a client of a confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege as such disclosure is inconsistent with the confidentiality which the privilege serves to protect.' [NAME] contends that in the light of the interpretation of the Full Federal Court in [NAME] of s 155 of the TP Act, which prevailed until the High Court's reversal of that decision, there was no waiver of [NAME] at common law or client legal privilege confined by the Evidence Act, in relation to the compliance by [NAME] and Mr [NAME] with [NAME]'s demands for evidentiary and other disclosures etc in the meantime, and that it is unfair for [NAME] to contend otherwise. Findings and conclusions 43 It is common ground that the privileged material constituted 'confidential communications' created for the dominant purpose of providing [NAME] with legal advice, and that the three documents comprising the privileged material, produced to [NAME], attracted the entitlement of [NAME] to [NAME], or in terms of s 118 of the Evidence Act, client legal privilege, in the latter case to the extent that the privileged material might subsequently be adduced in evidence. No contention to the contrary was advanced by [NAME] at the time of production of the privileged material, or thereafter in the course of [NAME]'s investigations, or at the hearing of the [NAME] application. I am satisfied that this is so. Ms [NAME] letter of 31 January 2000 to Mr [NAME], which attached a file note of 31 January 2000 concerning a conversation which took place in the later part of January 2000 between [NAME] and Mr [APPELLANT], was brought into existence to advise [NAME] of the circumstances which may give rise to possible contraventions of the TP Act, and to thereby enable [NAME] and its [NAME] thereafter to consider [NAME]'s approach to anticipated litigation. Similarly, Ms [NAME] letter of 4 February 2000 to Mr [NAME] detailed the factual material to which [NAME] was to have regard in considering how it would approach possible contraventions of the TP Act, as well as various opinions expressed by Ms [NAME] as to avenues open to [NAME] to alleviate the likelihood of Part IV proceedings being commenced by [NAME] against it. Ms [NAME] letter to Mr [NAME] of 10 February 2000, which attached a signed opinion by Mr [COUNSEL] of [NAME] in respect of the appropriate action to be taken by [NAME] in relation to alleged breaches of the TP Act, was similarly created for the purpose of providing [NAME] with legal advice in order to ameliorate the likelihood of contravention proceedings being brought against it. 44 It is sufficiently apparent from the conduct of the parties, including their correspondence, that privilege had been maintained by [NAME] from the time of service of [NAME]'s attached s 155 notices in relation to the privileged material, to the extent that privilege in respect thereof might subsequently become judicially recognised and enforceable, by reason of any future reversal by the High Court of the Full Federal Court's judgment in the [NAME] litigation. A further inference I would draw in favour of [NAME] is that it did not by its conduct indicate to [NAME] that its claim to privilege was not to be treated by [NAME] as waived by virtue of [NAME]'s responses in the meantime to the [NAME] and [NAME] notices by reason of the production to [NAME] of the privileged material, or by reason of the examinations of [NAME] executives subsequently conducted by [NAME] upon that material. 45 [NAME] produced the privileged material to [NAME] under the compulsion of the [NAME] and [NAME] notices, being a compulsion authorised by the judicial interpretation of the operation of s 155 of the TP Act for the time being prevailing, pursuant to the authority of the Full Federal Court in [NAME] (Mr [NAME] was of course an executive of [NAME]). That compulsion constituted a 'compulsion of law' within s 122(2)(c) of the Evidence Act, as well as at common law, notwithstanding that the decision in [NAME] of the Full Federal Court was later reversed by the High Court. The purported reliance of [NAME] upon [NAME] in denial of that proposition is I think misconceived, because the giving by the solicitor in that case (Mr [COUNSEL]) of his client's documents to the [COMPANY] was, by way of contrast to the circumstances of [NAME] at the material times, '…voluntary and for the calculated purpose of assisting him (ie the solicitor) in having the complaint against him resolved adversely to Mr [NAME] (cited at 101 of the report of the joint majority judgment extracted in [41] above), whereas the same could not be said of the compulsory processes of production of the privileged material and the questioning in relation thereto, to which [NAME] was required to submit because of the state of the general law for the time being concerning the operation of s 155. In continuing thereafter with its investigation into the conduct of [NAME] and its officers, including Mr [APPELLANT], upon the footing that [NAME] had no application of relevance thereto, [NAME] took merely advantage of the benefit for the time being of the [NAME] decision of the Full Federal Court. By the time the High Court gave judgment adversely to [NAME] in the [NAME] litigation relating to [NAME] in respect of the documents the subject of the s 155 notices to produce, [NAME] had enjoyed the advantage of access to the privileged material for about 13-14 months (ie from about September 2001 to 7 November 2002). Those circumstances are not to be compared, by way of further illustration, with those involved in [NAME] v [NAME]. 46 I do not think that in the unique context of those events, [NAME] by its conduct waived its entitlement to [NAME] in respect of the privileged material produced to [NAME] pursuant to the [NAME] and [NAME] notices, or in relation to the viva voce evidence subsequently given on behalf of [NAME] upon or otherwise referrable to the content of the privileged material. Nor do I think that there occurred waiver by inconsistent conduct on the part of [NAME]. It follows that such information as was obtained by [NAME] as a result of the s 155 notices and the examinations conducted by [NAME] in relation to the creation and content of that material has been at all times the subject of client legal privilege conferred by the Evidence Act, and of [NAME] at common law, depending on the context in which [NAME] has used and may hereafter seek to use the same. 47 Until the delivery of the High Court's judgment on appeal in [NAME], [NAME] vulnerable to the imposition of the sanctions stipulated by s 155(6A) of the TP Act, in the event that [NAME] and its executives (for instance Mr [APPELLANT]) would have sought to withhold from giving information, oral or documentary, to [NAME] in the course of the [NAME] s 155 inquiry. Those sanctions, in the case of individual persons, constituted fines or imprisonment, and in the case of a body corporate, potentially larger fines than those applicable to individual persons. It follows that to the extent that [NAME] and any of its employees or other [NAME] provided to [NAME] information, oral or written, in relation to the privileged material, as well as delivered up to [NAME] the privileged material per se, they did so under compulsion, or to use the description in Cross On Evidence (6th Australian Edition by [NAME]) (at 673), in circumstances of 'a want of the necessary voluntariness'. 48 An illustration of the notion of compulsion to provide privileged evidence, of application to the circumstances of [NAME] here involved, may be found in [NAME] v Campbell, (ante). The circumstances there were that a member of the Australian Federal Police sought to seize certain business records held by a solicitor for a taxpayer purportedly pursuant to a search warrant issued under s 10 of the Crimes Act 1914 (Cth). Those documents were subsequently found by a majority of the High Court to have attracted a justifiable claim for [NAME] at common law. [NAME[NAME] as one of the majority observed (at 95) that 'the very existence of the privilege as providing any significant protection and thereby making its contribution to the public welfare must be threatened unless as a matter of principle the protection extends to all forms of compulsory disclosure'. [NAME[NAME] (also in the majority) stated (at 111) as follows: 'A person is obliged to disclose or yield his information or property only to the extent that he is compelled to do so by some applicable common law principle or statutory provision. Where no such compulsion exists, there is no need for any special privilege protecting particular types of information or property from disclosure or seizure. The ordinary entitlement to remain silent and to retain one's information or property only constitutes a special privilege where it is preserved as an exception in circumstances where disclosure or cession would otherwise be compelled. In the absence of any such general compulsion, that entitlement represents no more than the ordinary position under the common law.' The compulsion exerted here by [NAME] upon [NAME] took the form of course of the comprehensive notices of demand of [NAME] attached to these reasons for judgment, and issued purportedly pursuant to s 155 of the TP Act (ie the [NAME] and [NAME] notices), and of the examination of [NAME]'s executives pursuant thereto. That conduct occurred at a time when s 155 of the TP Act, concerning of course the exercise by [NAME] of powers of investigation under the auspices thereof, by virtue of the Federal Court's decision in [NAME], operated to deny to both respondents in the principal proceedings (ie [NAME] and Mr [APPELLANT]) privilege in respect thereof. As a consequence of the High Court's reversal of the Federal Court's decision in [NAME], the documents produced, and information given by oral examination in relation thereto, had been always subject in law to the benefit of [NAME]. 49 About 10 years after the High Court's decision in [NAME] v [NAME], the Supreme Court of New South Wales in Woollahra Municipal Council addressed the notion of implied waiver of [NAME] at common law in the analogous circumstances of documents produced to a local government inspector, pursuant to the threat of exercise by the inspector of his powers of requiring compulsory disclosure. In the course of the reasons for judgment which have since been cited with approval on a number of occasions (including in [NAME] (at 95) (footnote 27) by [NAME], [NAME] and [NAME], (at 110) (footnote 67) by [NAME[NAME] and (at 122-123) by [NAME[NAME], [NAME[NAME] held in that situation as follows: 'Albeit intentional, the disclosure was made under threat of compulsory process and for the purpose of enabling the inspectors to carry out their statutory duty. In the circumstances in which it occurred, I do not think that the provision of documents subject to [NAME] to the inspectors was a waiver of privilege.' The circumstances in Woollahra Municipal Council are not precisely parallel to the circumstances here of the production to [NAME] of documents pursuant to a demand for the time being authorised by the general law relating to s 155 of the TP Act, by virtue of the Federal Court's decision in [NAME]. Once however the legal principles relating to the scope of operation relevantly of s 155 had been subsequently declared by the High Court in [NAME] to the contrary effect, the consequence was that the demands of [NAME] for production of the privileged material, and the subsequent requirement for viva voce examination in relation thereto, in either case pursuant to s 155, fell to be characterised from the outset as evidence obtained by unlawful compulsion. 50 The circumstances that no 'masking' of the privileged material was undertaken by [NAME] prior to production thereof to [NAME], and further that [NAME] did not seek an injunction from the High Court to restrain [NAME] from continuing with its investigative activities, in so far as the same related to or involved the use of the privileged material whether before or after [NAME]/[NAME] had successively pursued the course of obtaining an injunction in analogous circumstances, do not warrant any different conclusion, contrary to [NAME]'s submissions. For one matter, any such masking exercise would have been undertaken in the face of the Full Federal Court's decision in [NAME], which prevailed of course at the time [NAME] served the [NAME] and [NAME] notices. In addition by the time of the successful [NAME] and [NAME] applications to the High Court for interlocutory relief on 7 November 2001, Mr [NAME] had already been examined by [NAME] upon the basis of, or by reference, to the privileged material (see [13] above). It was open to [NAME] to think that its communications with [NAME], in response to its demand for documents pursuant to s 155, being the communications which I have earlier summarised in these reasons, afforded [NAME] the most favourable protection it could probably secure for the time being, pending the outcome of the [NAME] appeal to the High Court. A fortiori was [NAME]'s reticence in seeking any such interlocutory relief reasonable in the circumstances which prevailed before the [NAME] and [NAME] applications. For the Court to apply the benefit of hindsight of the successful injunction course later pursued by those applicants would be in my opinion to imply to the circumstances of [NAME] prevailing at the time of [NAME]'s demands for production of the privileged material, an unrealistic application of the notion of waiver of [NAME] and client legal privilege. 51 In the light of the correspondence between [RESPONDENT] and [NAME] which I have extracted or summarised earlier in these reasons, and the unusual circumstances giving rise to the [NAME] proceedings which I have already summarised, I do not think that [NAME] can rightly invoke assistance from the dictum in [NAME] (at 358). That correspondence is not susceptible to an interpretation to the effect that [NAME] was 'led by the disclosure to regulate [its] conduct in relation to some matter which becomes relevant in subsequent litigation to which he is a party' (Jordan [NAME] with whom [NAME] [NAME] and [NAME[NAME] agreed), despite the submission of [NAME] to the contrary. That correspondence gave sufficient notice of the claim of privilege in the event that the Full Federal Court's decision in [NAME] might subsequently be reversed by the High Court. Moreover there was no suggestion on [NAME]'s part that, absence of adducement of evidence, based upon or referrable to legal advice, explicit or implicit, contained in the privileged material, [NAME]'s investigation would as a consequence have been wholly or partly deferred pending the outcome of the application for special leave in [NAME], or of any subsequent appeal if special leave was to be granted. To the extent therefore that considerations of fairness might intrude, by reason of the implications of the correspondence initiated by [NAME]'s lawyers with [NAME] after service of the [NAME] and [NAME] notices to produce, I do not think that the relief to which [NAME] might otherwise be entitled in the [NAME] proceedings should be refused. The implications of the [RESPONDENT] correspondence framed by Ms [RESPONDENT] were sufficiently apparent for [NAME] to appreciate the course of action which [NAME] would pursue, if [NAME] was to proceed to use, in the context of its s 155 enquiry, any material which might correctly be characterised as privileged in consequence of an ultimately favourable appeal in the [NAME] litigation. 52 Furthermore I do not accept the unqualified and unspecific proposition that the circumstances that [NAME] and its [NAME] have necessarily retained knowledge of the contents of the privileged material, and have regulated their conduct in relation to the investigation and commencement of proceedings in reliance upon the privileged material, warrants the characterisation as futile the [NAME] in principle of the relief sought by [NAME]. Moreover the proposition is somewhat at odds with [NAME]'s [NAME] policy to which reference is made in the passage cited from [NAME] in [7] above. Given my finding of an absence of waiver on [NAME]'s part, and the statements of high judicial authority relating to the need for upholding of the integrity of the principle of [NAME] (see the authorities cited for instance in [28-29] above), the public interest in upholding the integrity of the principle should here prevail, irrespective of the complexity and difficulty which might hereafter be encountered in so doing. 53 I have therefore reached the conclusion that [NAME] is entitled in principle to relief broadly of the nature sought by the Amended Notice of Motion, though subject to the modifications which I think should be made, in all the unique circumstances of the case. That relief is authorised upon the basis of client legal privilege arising in the circumstances of the case pursuant to the Evidence Act, and to the extent that the conduct of [NAME] has extended or may hereafter extend beyond the adducing of evidence, that relief is authorised upon the basis of [NAME] conferred by common law. The disclosure of the privileged material was involuntary, and occurred in circumstances where [NAME] made efforts reasonably designed to protect and preserve its entitlements to privilege. In so far as that conclusion relates to privilege my conclusion has not been influenced by any considerations of fairness, so far as client legal privilege may extend in the particular contexts. I acknowledge that in [NAME] (at 425), it was said that the operation of s 122 of the Evidence Act is 'not concerned with any principle of "fairness", such as that developed by the common law and by which waiver may be imputed'. To the extent that the conduct of the [NAME] inquiry has involved thus far [NAME], I am of the opinion that the conduct of [NAME] in purported protection of that privilege has been fair upon the footing of the common law principles. I would add for completeness that [NAME] was of course as equally on notice as [NAME] that the Full Federal Court's decision in [NAME] was the subject of challenge by High Court proceedings, and it was presumably open to [NAME] to have proceeded with the [NAME] investigation, without resort to the use of the privileged material produced by [NAME] pursuant to the s 155 notices, pending the outcome of the High Court proceedings. I do not understand any evidence, or at least any compelling evidence, to have been provided by [NAME] to the contrary of that latter observation. Viability or otherwise of notice of motion process 54 [NAME] has submitted that in any event there is no procedural authority for [NAME] to have sought relief by notice of motion. 55 Order 19 Rule 1 of the Federal Court Rules provides: '(1) Any interlocutory or other application in any proceedings which has already been commenced in accordance with these Rules shall be made by motion…' 56 The ambit of the relief which may be claimed by notice of motion was considered by Young J in [COMPANY] v [NAME] (1994) 35 NSWLR 193. His Honour observed (at 199-200) that '[g]enerally speaking, the authorities support the proposition in that if the ambit of the case has been defined by pleadings or otherwise, then a motion for injunction made within the proceedings must be made out by affidavits corresponding with the allegations in the statement of claim: see [NAME], A Treatise on the Law and Practice of Injunctions (1927) London, [NAME] (6th ed) at 642. Thus a defendant who has not counter-claimed cannot seek interlocutory relief unless it relates to or arises out of the relief sought by the plaintiff…'. 57 The notice of motion procedure contained within Part 19 Rule 1 of the Supreme Court Rules 1970 (NSW) is in similar but not identical terms to Order 19 Rule 1 of the Federal Court Rules. The commentary in [NAME]'s Supreme Court Procedure NSW (at 19.1.1) provides nevertheless a useful analysis of what relief may be obtained through the notice of motion process: 'The purpose of this rule is to prescribe the form in which applications in existing proceedings are to be made (namely by motion). It neither restricts nor enlarges the kind of applications that can be made in the proceedings. Whether a particular application can properly be made is to be determined according to general principles. An example of such a situation occurs where application is made to enforce a compromise of the proceedings. Although such an application may be made by notice of motion, the use of that procedure is not appropriate where substantial matters are involved that go beyond the ambit of the proceedings as they were originally constituted, or where the interests of justice otherwise indicate that it is desirable to institute separate proceedings: Phillips v Walsh (1990) 20 NSWLR 206 at 209.' I am of the opinion that the notice of motion is an 'interlocutory or other application in… proceedings… already commenced in accordance with [the Federal Court] Rules', and is also a '…matter arising in connection with… the conduct of the hearing'. The notice of motion procedure adopted by [NAME] is therefore duly authorised by the Federal Court Rules in the [NAME] circumstances. Relief 58 The relief sought by [NAME] in the Amended Notice of Motion is as follows: '1. The Applicant be restrained from referring to or adducing in evidence or examination in these proceedings the material identified in paragraph 5 of the affidavit of [APPELLANT] sworn on 20 February 2003.

2. The Applicant be restrained from referring to or adducing in evidence or examination in these proceedings any material that: (a) in any way refers to the Privileged Material or the information contained in that material; (b) was created with the use of the Privileged Material or Privileged Information; or (c) was based on or in any way derived from, or influenced or affected by, the Privileged Material or the Privileged Information.

3. The Applicant be restrained from directly or indirectly using, disseminating, communicating, referring to or making use of in relation to these proceedings: (a) any of the Privileged Material or Privileged Information; (b) any material that in any way refers to the Privileged Material or Privileged Information; (c) any material that was created with the use of the Privileged Material or Privileged Information; and (d) any material that was based on or in any way derived from, or influenced or affected by, the Privileged Material or Privileged Information.

4. The Applicant identify and destroy: (a) all copies of the Privileged Material in its possession, custody or control; (b) all documents and records (including electronic records) in its possession custody or control that in any way directly or indirectly refer to the Privileged Material or the Privileged Information; (c) all documents and records (including electronic records) in its possession, custody or control that were created with the use of the Privileged Material or Privileged Information; and (d) all documents and records (including electronic records) in its possession, custody or control that were based on or in any way derived from, or influenced or affected by, the Privileged Material or Privileged Information.

5. The Applicant identify all Commissioners and Commission staff and [NAME] who have any knowledge of the Privileged Material and/or Privileged Information and must ensure that those persons are: (a) no longer involved in these proceedings in any capacity; (b) no longer involved in any further or additional investigation by the Applicant involving similar allegations against the [NAME]; and (c) instructed in writing not to discuss or refer to or otherwise disseminate any of the Privileged Material or Privileged Information.

6. The Applicant file and serve on the [APPELLANT] on or before 2 May 2003 an affidavit listing the documents referred to in Order 4 and listing the Commissioners and Commission staff referred to in Order 5.

7. Such further and other orders, directions or relief as the court thinks fit.' 59 The above orders are modelled on the relief granted by Campbell J in [COMPANY] to which brief reference has earlier been made. In that case an employee of [COMPANY] had breached his duty of confidentiality owed to his employer by voluntarily providing material, for compilation of a witness statement, to a [NAME] acting on behalf of an applicant in representative proceedings in the Federal Court of Australia brought against his employer. At (215) [NAME[NAME] said 'now that Mr [NAME] has talked with [NAME] and provided a draft statement, [NAME] is in the situation where it has information which it should never have had. Conscionable behaviour on its part requires that it give up the information it should not have had, and nor, in the future, obtain any benefit from having once had that information'. Later (at 218) [NAME[NAME] held that 'Mr. [NAME] is in breach of his contract, and [NAME] is, at least after absorbing this judgment, knowingly in receipt of the fruits of that breach of contract. It is not in accordance with equity's approach in giving remedies to allow the wrongdoer to retain the fruits of wrongdoing, on the ground that the plaintiff will not thereby be any worse off, unless it is very clearly the case that the granting of relief would be futile'. 60 In considering the scope of the relief sought, I bear in mind that the [NAME] application does not of course involve any claim giving rise to equitable remedies of the scope formulated in [COMPANY]. The context of the [NAME] proceedings involves the kind of considerations attending to investigations undertaken purportedly in the public interest, and not merely commercial considerations between two litigating parties. I think that the relief framed by [NAME] is unacceptably wide in scope. Moreover I bear in mind that [NAME] as a Commonwealth agency assumes the mantle of a 'model litigant' in its prosecution of proceedings for infringement of the TP Act ([NAME] v Handley (1999-2000) 58 ALD 373 at [43]). I have modified the text of the relief framed by [NAME], but will [NAME] liberty to apply in the event that the orders I have framed, for example in the view of the docket judge, operate to produce for instance impracticality in particular circumstances. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 18 June 2003 [NAME]: [APPELLANT]

[NAME]: Australian Government Solicitor

Counsel for the [APPELLANT]: [[APPELLANT]]

Solicitor for the [APPELLANT]: [[APPELLANT]]

Counsel for the [APPELLANT]: [[APPELLANT]]

Solicitor for the [APPELLANT]: [[APPELLANT]]

Date of Hearing: 14 April 2003

Date of Judgment: 18 June 2003

SCHEDULE 1 TRADE PRACTICES ACT [POSTCODE] SECTIONS 155(1)(a) and 155(1)(b) NOTICE TO FURNISH INFORMATION AND PRODUCE DOCUMENTS The [COMPANY] 20 TWR A [COMPANY] [ADDRESS] NSW [POSTCODE] WHEREAS, I, [NAME] [NAME], [NAME] of the [NAME] Commission ('the Commission'), have reason to believe that [COMPANY] ('the Company') is capable of furnishing information and producing documents relating to matters that constitute or may constitute contraventions of section 45 of the Trade Practices Act 1974 ('the Act'), namely:

THE MATTERS THAT CONSTITUTE OR MAY CONSTITUTE CONTRAVENTIONS OF THE ACT 1. That the Company has made, and has given effect to contracts, arrangements or understandings, provisions of which have the purpose, or have or are likely to have the effect, of substantially lessening competition in contravention of sections 45(2)(a) and 45(2)(b) of the Act in so far as the Company did: (a) between about 1 January 1999 and the date of this Notice, make and give effect to contracts, arrangements or understandings with [COMPANY] and other [NAME] in the production and marketing of flour in Australia, under which the parties to the contracts, arrangements or understandings would agree and coordinate price increases and limit discounts and rebates in respect of wholesale prices for flour such contracts, arrangements or understandings having the purpose, or having the effect or being likely to have the effect, as the case may be, of fixing, controlling or maintaining the wholesale price for flour supplied by the parties in Australia; and (b) between about 1 January 1999 and the date of this Notice, make and give effect to contracts, arrangements or understandings with [COMPANY] and other [NAME] in the production and marketing of bread in Australia, under which the parties to the contracts, arrangements or understandings would agree and coordinate price increases and limit discounts and rebates in respect of wholesale prices for bread such contracts, arrangements or understandings having the purpose, or having the effect or being likely to have the effect, as the case may be, of fixing, controlling or maintaining the wholesale price for bread supplied by the parties in Australia.

2. That the Company has attempted to make a contract, arrangement or understanding, a provision of which had the purpose or would have or be likely to have the effect, of substantially lessening competition in contravention of sections 76(1)(b) and 45(2)(a) of the Act in so far as the Company did: (a) In about November or December 1999, through the conduct of a representative or representatives of the Company, attempt to enter into a contract, arrangement or understanding with [COMPANY], a [NAME] in the production and marketing of flour in Australia, under which the parties to the proposed contract, arrangement or understanding would increase the wholesale price of flour in Australia in or around late 1999, such contract, arrangement or understanding having the purpose, or having the effect or being likely to have the effect, as the case may be, of fixing, controlling or maintaining the wholesale price of flour supplied by the parties in Australia.

ACCORDINGLY, I, [NAME], [NAME] OF THE COMMISSION, pursuant to paragraphs 155(1)(a) and 155(1)(b) of the Act, HEREBY REQUIRE the Company to produce the documents specified in Schedule 1 to this Notice and to furnish the information specified in Schedule 2 to this Notice (in writing and signed by a [NAME] officer of the Company) being documents and information which, I have reason to believe, the Company is capable of producing and furnishing and which relate to the said matters that constitute or may constitute contraventions of section 45 of the Act, by delivering the documents and information to the Commission's offices situated at 7th Floor, [ADDRESS], [ADDRESS], [APPELLANT] 2000,between the hours of 9:00am and 5:00pm on any business day,on or before Friday the 14th day of September 2001. DEFINITIONS In this Notice, including Schedule 1 and Schedule 2 to this Notice, unless the contrary intention appears: 'the Company' means [COMPANY] and includes, where the context permits, reference to any subsidiary or related company of [COMPANY]; 'communication' includes oral or written communications; 'document' includes - (a) a book, plan, paper or other material on which there is writing or printing, or on which there are marks symbols or perforations, having a meaning for persons qualified to interpret them; (b) a disc, tape, paper or other device from which sounds or messages are capable of being produced including computer hard-drives, discs and tapes; (c) diary entries, invoices, correspondence, notices, circulars, memoranda, notes, facsimiles, electronic mail and records or oral conversations including conversations, speeches and addresses at meetings, by video transmission or by telephone; (d) electronic records (including computer files and electronic mail) which are stored on back-up tapes, hard disks, CD-Rom, DVD or other media by the Company or by third parties engaged by the Company; and (e) telephone account records; [COMPANY] means [COMPANY] and includes, where the context permits, any subsidiary or related company of [COMPANY]; [COMPANY] means [COMPANY] and includes, where the context permits, any subsidiary or related company of [COMPANY]; 'representative' includes but is not [COMPANY] to the following: directors, employees, [NAME], contractors, [NAME] and [NAME]. the singular includes the plural and the plural includes the singular; a reference to any corporation, whether expressly identified or not, includes a reference to any representative of that corporation. Insofar as any document referred to in Schedule 1 to this Notice has passed from your possession, power or control to that of [NAME], identify the document and state the full name and address of the person into whose possession, power or control it has passed. Dated this . . . . . . . . . . . . day of August 2001. . . . . . . . . . . . . . . . . . . . [NAME] [NAME] Commission

NOTICE UNDER SECTIONS 155(1)(a) and 155(1)(b) TO [COMPANY] TO BE PRODUCED TO THE COMMISSION ON OR BEFORE FRIDAY 14 SEPTEMBER 2001 1. Price lists relating to the wholesale supply of flour in Australia or in any part of Australia valid for any time in the period 1 January 1999 to the date of this Notice.

2. Any document by which the Company has communicated (between 1 January 1999 and the date of this Notice) to any of its customers, an offer of discount or rebate relating to the wholesale supply of flour in Australia or in any part of Australia.

3. Price lists relating to the wholesale supply of bread in Australia or in any part of Australia valid for any time in the period 1 January 1999 to the date of this Notice.

4. Any document by which the Company has communicated (between 1 January 1999 and the date of this Notice) to any of its customers, an offer of discount or rebate relating to the wholesale supply of bread in Australia or in any part of Australia.

5. Any document brought into existence by the Company, or a [NAME] of the Company, which refers to a decision by the Company, or the contemplation or the consideration by the Company to vary the price at which it supplies flour and/or bread in Australia or in any part of Australia between 1 January 1999 and the date of this Notice.

6. Any document by which the Company has communicated (between 1 January 1999 and the date of this Notice) to any of its customers, increases in the prices at which it would supply flour in Australia or in any part of Australia.

7. Any document by which the Company has communicated (between 1 January 1999 and the date of this Notice) to any of its customers, increases in the prices at which it would supply bread in Australia or in any part of Australia.

8. Any document which refers to or evidences any meeting or communication (between 1 January 1999 and the date of this Notice) between the Company and [COMPANY] at which or in which reference was made to the price (or any discount or rebate) at or subject to which the Company or [COMPANY] supplies, supplied or would supply flour in Australia or in any part of Australia.

9. Any document which refers to or evidences any meeting or communication (between 1 January 1999 and the date of this Notice) between the Company and [COMPANY] at which or in which reference was made to the price (or any discount or rebate) at or subject to which the Company or [COMPANY] supplies, supplied or would supply bread in Australia or in any part of Australia.

10. Any document (other than a document produced pursuant to paragraph 8 above) which refers to or evidences any meeting or communication (between 1 January 1999 and the date of this Notice) between the Company and any of its [NAME] at which or in which reference was made to the price (or any discount or rebate) at or subject to which the Company or any of its [NAME] supplies, supplied or would supply flour in Australia or in any part of Australia.

11. Any document (other than a document produced pursuant to paragraph 9 above) which refers to or evidences any meeting or communication (between 1 January 1999 and the date of this Notice) between the Company and any of its [NAME] at which or in which reference was made to the price (or any discount or rebate) at or subject to which the Company or any of its [NAME] supplies, supplied or would supply bread in Australia or in any part of Australia.

12. Any document which evidences or refers to any meeting or communication (between 1 January 1999 and the date of this Notice) between the Company and [COMPANY] [NAME] [NAME] including but not [COMPANY] to correspondence from [COMPANY] in or around December 2000.

13. Any document which refers to or evidences any contract, arrangement or understanding between the Company and [COMPANY] between 1 January 1999 and the date of this Notice, under which the Company and/or [COMPANY] would agree upon discounts and/or price increases in respect of wholesale sales of flour in Australia or in any part of Australia.

14. Any document which refers to or evidences any contract, arrangement or understanding between the Company and [COMPANY] between 1 January 1999 and the date of this Notice, under which the Company and/or [COMPANY] would increase the wholesale price of flour in Australia or in any part of Australia.

15. Any document (other than a document produced pursuant to paragraph 13 above) which refers to or evidences any contract, arrangement or understanding between the Company and a [NAME] in the supply of flour in Australia or in any part of Australia, between 1 January 1999 and the date of this Notice, under which the Company and/or its [NAME] would agree upon discounts and/or price increases in respect of the wholesale sales of flour in Australia or in any part of Australia.

16. Any document (other than a document produced pursuant to paragraph 14 above) which refers to or evidences any contract, arrangement or understanding between the Company and a [NAME] in the supply of flour in Australia or in any part of Australia between 1 January 1999 and the date of this Notice, under which the Company and/or its [NAME] would increase the wholesale price of flour in Australia or in any part of Australia.

17. Any document which refers to or evidences an attempt by the Company to make any contract, arrangement or understanding of the nature referred to at paragraphs 13, 14, 15 or 16 above.

18. Any document which refers to or evidences an attempt by a [NAME] of the Company in the supply of flour in Australia or in any part of Australia to make any contract, arrangement or understanding of the nature referred to at paragraphs 13, 14, 15 or 16 above.

19. Any document which refers to or evidences any contract, arrangement or understanding between the Company and [COMPANY] between 1 January 1999 and the date of this Notice, under which the Company and/or [COMPANY] would agree upon discounts and/or price increases in respect of wholesale sales of bread in Australia or in any part of Australia.

20. Any document which refers to or evidences any contract, arrangement or understanding between the Company and [COMPANY] between 1 January 1999 and the date of this Notice, under which the Company and/or [COMPANY] would increase the wholesale price of bread in Australia or in any part of Australia.

21. Any document (other than a document produced pursuant to paragraph 19 above) which refers to or evidences any contract, arrangement or understanding between the Company and a [NAME] in the supply of bread in Australia or in any part of Australia, between 1 January 1999 and the date of this Notice, under which the Company and/or its [NAME] would agree upon discounts and/or price increases in respect of the wholesale sales of bread in Australia or in any part of Australia.

22. Any document (other than a document produced pursuant to paragraph 20 above) which refers to or evidences any contract, arrangement or understanding between the Company and a [NAME] in the supply of bread in Australia or in any part of Australia between 1 January 1999 and the date of this Notice, under which the Company and/or its [NAME] would increase the wholesale price of bread in Australia or in any part of Australia.

23. Any document which refers to or evidences an attempt by the Company to make any contract, arrangement or understanding of the nature referred to at paragraphs 19, 20, 21 or 22 above.

24. Any document which refers to or evidences an attempt by a [NAME] of the Company to make any contract, arrangement or understanding of the nature referred to at paragraphs 19, 20, 21 or 22 above.

25. Any diary, journal, appointment book, calendar or similar document (including electronic records) held or maintained by the persons listed below in respect of any time in the period 1 January 1999 to the date of this Notice: a) [NAME]; b) [RESPONDENT]; c) [RESPONDENT]; d) [NAME] [RESPONDENT]; e) [NAME]; and f) [NAME] [APPELLANT]; referring or relating to any communication between a representative of the Company and: • [COMPANY]; • [COMPANY]; • [NAME] of [COMPANY]; or • any [NAME] of the Company.

26. Any document which refers to or evidences any meeting between or communication between [NAME] of [COMPANY] and [NAME] of [COMPANY] (between 1 January 1999 and the date of this Notice) in which reference was made to the price (or any discount or rebate) at or subject to which the Company or [COMPANY] supplies, supplied or would supply flour and/or bread in Australia or in any part of Australia.

27. Any document which refers to or evidences any meeting between or communication between [NAME] of [COMPANY] and [NAME] of the Company (between 1 January 1999 and the date of this Notice) in which reference was made to the price (or any discount or rebate) at or subject to which the Company or [COMPANY] supplies, supplied or would supply flour and/or bread in Australia or in any part of Australia.

28. Any document which refers to or evidences any meeting between or communication between [NAME] of the Company and [NAME] of [COMPANY] (between 1 January 1999 and the date of this Notice) in which reference was made to the price (or any discount or rebate) at or subject to which the Company or [COMPANY] supplies, supplied or would supply flour and/or bread in Australia or in any part of Australia.

29. Any document which refers to or evidences any meeting between or communication between [NAME] of [COMPANY] and [NAME] of the Company (between 1 January 1999 and the date of this Notice) in which reference was made to the price (or any discount or rebate) at or subject to which the Company or [COMPANY] supplies, supplied or would supply flour in Australia or in any part of Australia.

30. Any document which refers to or evidences any meeting between or communication between [RESPONDENT] of [COMPANY] and [NAME] [RESPONDENT] of the Company (between 1 January 1999 and the date of this Notice) in which reference was made to the price (or any discount or rebate) at or subject to which the Company or [COMPANY] supplies, supplied or would supply bread in Australia or in any part of Australia.

31. Any document which refers to or evidences any meeting or communication between [NAME] of the Company and [NAME] of [COMPANY] on or around 30 August 2000.

32. Any document recording a communication between all or any of the Company, the Company's [NAME], [COMPANY] and the [NAME] of [COMPANY] which refers to any meeting between [NAME] of the Company and [NAME] of [COMPANY] on or around 30 August 2000.

33. Any document which refers to or evidences any meeting or communication between [NAME] [APPELLANT] of the Company and [APPELLANT] and/or [APPELLANT] of [COMPANY] in or around November or December 1999.

34. Any document which refers to or evidences any meeting or communication between [NAME] and/or [NAME] of the Company and [NAME] of [COMPANY] in or around January 2000.

35. Any document which refers to or evidences any communication (between late 1999 and the date of this Notice) from [NAME] and/or [NAME] to the Company Board and/or other representatives of the Company with respect to possible communication between [NAME] [APPELLANT] of the Company and any representative of [APPELLANT].

36. Any document which refers to the Company's consideration or inquiries (between late 1999 and the date of this Notice) with respect to any communication between [NAME] [APPELLANT] of the Company and any representative of [APPELLANT] in or around November or December 1999.

37. Any document which refers to the reasons or circumstances surrounding the dismissal or cessation of employment or directorship of [NAME] [APPELLANT] and/or [NAME] from the Company in 2000.

38. Any document created by the Company between 1 January 1999 and the date of this Notice which refers to the Company's or its representatives' compliance with the provisions of the Trade Practices Act 1974 in respect of the prices of flour and/or the prices of bread supplied by the Company.

SCHEDULE 2 TO NOTICE UNDER SECTIONS 155(1)(a) and 155(1)(b) TO [COMPANY] TO BE FURNISHED TO THE COMMISSION ON OR BEFORE FRIDAY 14 SEPTEMBER 2001 1. In relation to any document produced in response to the requirements of Schedule 1 to this Notice, state whether the Company disputes the authenticity of any such documents and, if so, identify the documents whose authenticity is disputed.

2. In relation to any document produced in response to the requirements of Schedule 1 to this Notice, state whether the [NAME] contends that the contents of any such documents are inaccurate in so far as they relate to the conduct of the Company and, if so, identify the documents concerned and state the extent to which such documents are inaccurate in this respect.

3. For the period of 1 January 1999 to the date of this Notice, state the position(s) in the Company held by the persons listed below, the respective time frames the persons held those position(s) and describe the roles and responsibilities of [NAME] in each such position: a) [NAME]. [NAME]; b) [NAME]; c) [RESPONDENT]; d) [RESPONDENT]; e) [NAME] [RESPONDENT]; f) [NAME]; and g) [NAME] [APPELLANT].

4. For the period of 1 January 1999 to the date of this Notice, provide the following information in relation to each of the persons referred to in paragraph 3 above: a) work telephone numbers b) work facsimile numbers; c) work email addresses; d) home facsimile numbers; e) home telephone numbers; and f) mobile phone numbers.

5. For the period of 1 January 1999 to the date of this Notice, state the name of each person and the persons' position within the Company who were responsible for making decisions or making recommendations as to the price (or any discount or rebate) at or subject to which the Company supplied: a) flour; and b) bread.

6. For each of the persons named in the response to paragraph 5 advise to whom [NAME] reported within the Company.

7. Where any person named in the response to paragraph 5 is no longer employed by the Company advise of the date on which [NAME] ceased employment with the Company.

8. For the period of 1 January 1999 to the date of this Notice, state the prices (being prices before discounts and/or rebates are applied) at which the Company supplied its various varieties of flour in Australia or in any part of Australia including details of the flour variety and dates to which those prices applied.

9. For the period of 1 January 1999 to the date of this Notice, advise of any discounts or rebates to the prices (being prices before discounts and/or rebates are applied) offered by the Company in relation to the supply of its various varieties of flour in Australia or in any part of Australia including details of the flour variety and dates on which those discounts or rebates applied.

10. For the period of 1 January 1999 to the date of this Notice, state the prices (being prices before discounts and/or rebates are applied) at which the Company supplied its various varieties of bread in Australia or in any part of Australia including details of the bread variety and dates to which those prices applied.

11. For the period of 1 January 1999 to the date of this Notice, advise of any discounts or rebates to the prices (being prices before discounts and/or rebates are applied) offered by the Company in relation to the supply of its various varieties of bread in Australia or in any part of Australia including details of the bread variety and dates on which those discounts or rebates applied.

12. Provide details of any meeting between [NAME] of the Company and [NAME] of [COMPANY] on or around 30 August 2000 including: a) the date and time; b) the venue and location ; c) the name/s of the organiser/s; d) the attendees and their respective positions; e) the purpose; and f) the matters discussed.

139 TRADE PRACTICES ACT [POSTCODE] SECTIONS 155(1)(b) and 155(1)(c) NOTICE TO [RESPONDENT] C/o- [RESPONDENT] [NAME] Partner [RESPONDENT] [COMPANY] 530 [ADDRESS] [POSTCODE] WHEREAS, I, [NAME], [NAME] of the [NAME] Commission ('the Commission'), have reason to believe that [NAME] ('[NAME]') is capable of producing documents and giving evidence relating to matters that constitute or may constitute contraventions of section 45 of the Trade Practices Act 1974 ('the Act'), namely:

THE MATTERS THAT CONSTITUTE OR MAY CONSTITUTE CONTRAVENTIONS OF THE ACT 1. That [NAME] [COMPANY] ('the Company') has made, and has given effect to, contracts, arrangements or understandings, provisions of which have the purpose, or would have or be likely to have the effect, of substantially lessening competition in contravention of sections 45(2)(a) and 45(2)(b) of the Act in so far as the Company did: (a) between about 1 January 1999 and the date of this notice, make and give effect to contracts, arrangements or understandings with [COMPANY] and other [NAME] in the production and marketing of flour in Australia, under which the parties to the contracts, arrangements or understandings would agree and coordinate price increases and limit discounts and rebates in respect of wholesale prices for flour such contracts, arrangements or understandings having the purpose, or having the effect or being likely to have the effect, as the case may be, of fixing, controlling or maintaining the wholesale price for flour supplied by the parties in Australia; and (b) between about 1 January 1999 and the date of this notice, make and give effect to contracts, arrangements or understandings with [COMPANY] and other [NAME] in the production and marketing of bread in Australia, under which the parties to the contracts, arrangements or understandings would agree and coordinate price increases and limit discounts and rebates in respect of wholesale prices for bread such contracts, arrangements or understandings having the purpose, having the effect or being likely to have the effect, as the case may be, of fixing, controlling or maintaining the wholesale price for bread supplied by the parties in Australia.

2. That the Company has attempted to make a contract, arrangement or understanding, a provision of which had the purpose or would have or be likely to have the effect, of substantially lessening competition in contravention of sections 76(1)(b) and 45(2)(a) of the Act in so far as the Company did: (a) In about November or December 1999, through the conduct of a representative or representatives of the Company, attempt to enter into a contract, arrangement or understanding with [COMPANY], a [NAME] in the production and marketing of flour in Australia, under which the parties to the proposed contract, arrangement or understanding would increase the wholesale price of flour in Australia in or around late 1999, such contract, arrangement or understanding having the purpose, or having the effect or likely effect, of fixing, controlling or maintaining the wholesale price of flour supplied by the parties in Australia.

ACCORDINGLY, I, [NAME] [NAME], [NAME] of the Commission, pursuant to sub paragraphs 155(1)(b) and 155(1)(c) of the Act, [NAME] to produce the documents specified in the Schedule to this Notice by delivering the documents to the Commission's offices situated at 7th Floor, [ADDRESS], [ADDRESS], [APPELLANT] 2000,between the hours of 9:00am and 5:00pm on any business day,on or before Monday the 3rd day of September 2001 and to appear before the Commission in the Commission's office situated at 7th Floor, [ADDRESS], [ADDRESS], [APPELLANT] 2000,at 2:00pm on Tuesday the 4th day of September 2001 to give oral evidence relating to the said matters that may constitute contraventions of section 45 of the Act. DEFINITIONS In this Notice, including the Schedule to this Notice, unless the contrary intention appears: 'the Company' means [COMPANY] and includes, where the context permits, reference to any subsidiary or related company of [COMPANY] ; 'communication' includes oral or written communications; 'document' includes - (a) a book, plan, paper or other material on which there is writing or printing, or on which there are marks symbols or perforations, having a meaning for persons qualified to interpret them; (b) a disc, tape, paper or other device from which sounds or messages are capable of being produced including computer hard-drives, discs and tapes; (c) diary entries, invoices, correspondence, notices, circulars, memoranda, notes, facsimiles, electronic mail and records or oral conversations including conversations, speeches and addresses at meetings, by video transmission or by telephone; (d) electronic records (including computer files and electronic mail) which is stored on back-up tapes, hard disks, CD-Rom, DVD or other media by the Company or by third parties engaged by the Company; and (e) telephone account records; [COMPANY] means [COMPANY] and includes, where the context permits, any subsidiary or related company of [COMPANY]; [COMPANY] means [COMPANY] and includes, where the context permits, any subsidiary or related company of [COMPANY]; 'Representative' include but are not [COMPANY] to the following: directors, employees, [NAME], contractors, [NAME] and [NAME] the singular includes the plural and the plural includes the singular; a reference to any corporation, whether expressly identified or not, includes a reference to any representative of that corporation. Insofar as any document referred to in the Schedule to this Notice has passed from your possession, power or control to that of [NAME], identify the document and state the full name and address of the person into whose possession, power or control it has passed. Dated this . . . . . . . . . . . . day of August 2001. . . . . . . . . . . . . . . . . . . . [NAME] [NAME] Commission

NOTICE UNDER SECTIONS 155(1)(b) and 155(1)(c) TO [NAME] [NAME] TO BE PRODUCED TO THE COMMISSION ON MONDAY 3 SEPTEMBER 2001

1. Any diary, journal, appointment book, calendar or similar document (including electronic records) held or maintained by [NAME] for any period within the period 1 January 1999 to the date of this notice, referring or relating to any communication between representatives of the Company and representatives of: § [COMPANY]; § [COMPANY]; or § any other [NAME] of the Company 2. Any document which refers to or evidences any meeting between or communication between [NAME] [APPELLANT] of the Company and [APPELLANT] and/or [APPELLANT] of [COMPANY] in or around November or December 1999.

3. Any document which refers to or evidences any meeting or communication between [NAME] and/or [NAME] of the Company and [NAME] of [COMPANY] in or around January 2000.

4. Any document which refers to or evidences any communication (between late 1999 and the date of this notice) from [NAME] and/or [NAME] to the Company Board and/or other representatives of the Company with respect to possible communication between [NAME] [APPELLANT] of the Company and any representative of [APPELLANT].

5. Any document which refers to the Company's consideration or inquiries (between late 1999 and the date of this notice) with respect to any communication between [NAME] [APPELLANT] of the Company and any representative of [APPELLANT] in or around November or December 1999.

6. Any document which refers to the reasons or circumstances surrounding the dismissal or cessation of employment or directorship of [NAME] [APPELLANT] and/or [NAME] from the Company in 2000.

7. Any document created by the Company between 1 January 1999 and the date of this notice which refers to the Company's or its representatives' compliance with the provisions of the Trade Practices Act 1974.