Case: Australian Securities &amp; Investments Commission v Mercorella (No 3) [2006] FCA 772
Outcome: considered
submitted that this Court should hold that there has been no imputed waiver because the Commonwealth has made no attempt to identify why it would be unfair or inequitable for AWB to maintain privilege in the underlying investigations. This submission immediately raises the question unfair or inequitable to whom? I doubt that any question arises of fairness to the Commission it is an arm of the executive government charged with the investigation of specified matters. Nor does any question arise of fairness to the Commonwealth. Fairness presupposes a balancing of interests between parties who are in dispute. In that context, partial disclosures raise a question of fairness because there is the capacity to mislead one party to the dispute to his or her detriment. These concepts do not translate easily to the present case: cf McHugh J in Mann at 40 [127]-[128]. There is also the difficulty that, outside the framework of an inter partes dispute, fairness is truly a term of 'indeterminate reference': Mann at 40 [129] per McHugh J, citing RJ Desiatnik, Legal Professional Privilege in Australia , 1999, p 122. 133 Mann anticipated that there will be cases in which considerations of fairness have little or no role to play. This is such a case. The broad question posed by Mann is whether, and to what extent, AWB's disclosures are inconsistent with the maintenance of confidentiality in the documents which are at issue in these proceedings. This question wraps up several subsidiary issues, in particular whether AWB's disclosures involved, on each occasion, a disclosure of the gist or substance of its legal advice, whether AWB consciously deployed that advice so as to advance its own commercial or other interests, and, if so, whether that disclosure has resulted in an imputed waiver of privilege over any and what associated materials. In any application of Mann , the starting point must be an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material: see Rio Tinto at [45]. The disclosures in question here were made variously to the IIC, to the Australian Government, to the Commission and in some instances via the procedures of the Commission to the public at large. In my opinion, there is no reason why these disclosures cannot support a finding that AWB has waived legal professional privilege over associated material. AWB submitted that imputed waiver cannot arise in the context of a commission established under the RCA. Alternatively, it submitted that the coercive and inquisitorial context in which the alleged waiver has taken place is an important factor which strongly militates against waiver. These submissions ignore the voluntary disclosures that AWB made to the Australian Government. In any event, I am not persuaded that AWB's disclosures to the Commission and the IIC are incapable of giving rise to an imputed waiver. Leaving aside any question of waiver, AWB was entitled to maintain legal professional privilege in the course of proceedings before the Commission and, by and large, it sought to do so. To the extent that AWB has already produced documents to the Commission containing legal advice or instructions, it did so because it recognised that actions it had taken outside the Commission had the consequence of waiving privilege over those documents. As for the oral evidence that the Commonwealth now relies upon, Lindberg, Cooper and Scales were senior executives of AWB when they gave that evidence to the Commission. There is nothing before me to suggest that they were not speaking as executives of AWB when they gave their evidence, or that their evidence fell outside the scope of their authority from AWB. Further, their evidence was given in the presence of AWB's legal representatives, without any objection being raised on grounds of legal professional privilege. Lindberg, Cooper and Scales may have been compelled to give evidence at the Commission, but they were under no compulsion to reveal the gist or substance of legal advice that had been obtained by AWB. In these circumstances, I infer that the relevant evidence given by Lindberg, Cooper and Scales was given with the authority or acquiescence of AWB. I also infer that AWB was content for the evidence to be given at public hearings of the Commission, having regard to its own commercial interests. The evidence before me makes it clear that AWB was concerned to defend its integrity and commercial reputation in the course of the Commission's hearings. I infer that AWB made the assessment that it would advance its commercial interests if it were to be known publicly that it had undertaken extensive legal reviews and that, as a result, it had obtained legal advice that there was no evidence that it had engaged in any improper or unlawful conduct in breach of the United Nations' sanctions. AWB was content for information of this character to be disclosed publicly in relation to both Project Rose and Project Water. It would, of course, be a different case if the documents and information that the Commonwealth relies upon were disclosed under legal compulsion. On any view, the fact that documents and information were disclosed under compulsion would be very relevant to the question whether the person claiming privilege had engaged in inconsistent conduct. There is, moreover, authority to the effect that a production of documents or evidence under compulsion will not result in any waiver of privilege: Goldman v Hesper [1988] 1 WLR 1238 ( 'Goldman' ); Trans America Computer Co Inc v IBM Corporation 573 F2d 646 (9 th Cir 1978) ( 'Trans America' ) at 651. AWB's disclosures to the IIC were not made under legal compulsion. They were made by choice under a confidentiality regime negotiated by AWB. The Memorandum of Understanding between AWB and the IIC provided that AWB could withhold documents from the IIC on grounds of commercial sensitivity or legal professional privilege, or if there was a risk that AWB, its officers or employees would be exposed to breaches of Australian law. It also provided that any interviews conducted by the IIC of AWB officers or employees could be undertaken in the presence of a personal legal counsel and/or up to two representatives of AWB. AWB thereby retained the right to object to any question that intruded into areas protected by legal professional privilege. On the evidence before me, including in particular the various briefings which Hargreaves gave to the Australian Government, it is clear that AWB decided that it needed to cooperate, and be seen to cooperate, with the IIC so as to retain the support of the Australian Government and to protect and defend its commercial reputation. I do not agree with AWB's submission that, even if its disclosures were not compelled by law, the inquisitorial context in which they took place is a factor which strongly militates against waiver. In Australia, legal professional privilege is a fundamental common law right that can be asserted outside the context of adversarial litigation. It can, for instance, be invoked to resist the production of documents in answer to a search warrant or the giving of information or the production of documents pursuant to coercive statutory powers or notices: Daniels at 552-553 [9] [11] and 563 [44]; Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52. As legal professional privilege can be invoked outside the context of judicial or quasi-judicial proceedings, logic suggests that it should be capable of being waived if the claimant engages in conduct that is inconsistent with the maintenance of the confidentiality that the privilege is intended to protect. It should not matter whether the conduct takes place within, or outside, the framework of the proceedings or investigatory process in which a demand has been made for the production of privileged documents or information. The crucial question is whether the conduct is inconsistent with the maintenance of confidentiality. The disclosure of privileged communications to a third party can result in an imputed waiver of privilege, even if there is no intention of waiving privilege and the disclosure is for a limited and specific purpose. In Mann , the Chief Minister of the Australian Capital Territory conveyed legal advice, on a confidential basis, to a member of the Territory's Legislative Assembly to enable him to consider the reasonableness of the Government's decision to settle certain legal proceedings. The majority decision turned on the fact that the disclosure to a member of the Legislative Assembly was not regarded as disclosure to a third party. In their joint judgment, Gleeson CJ, Gaudron, Gummow and Callinan JJ said at 15 [35] that: 'The purpose of the privilege being to protect the Territory from subsequent disclosure of the legal advice it received concerning the litigation instituted by the appellant, there was nothing inconsistent with that purpose in the Chief Minister conveying the terms of that advice, on a confidential basis, to a member of the Legislative Assembly who wished to consider the reasonableness of the conduct of the Territory in relation to the litigation.' However, their Honours also observed that, while the voluntary disclosure of privileged legal advice to a third party will not necessarily waive privilege, it can do so. They said that Goldberg v Ng illustrates that, depending on the circumstances, the disclosure of a privileged communication to a third party for a limited and specific purpose, and on terms as to confidentiality, can have the consequence of waiving privilege. McHugh J dissented. In his view, any disclosure of privileged material to a third party who is a stranger to the privileged relationship (ie to a person who is not the lawyer or the client) should have the consequence that privilege in that material is waived as against the world: at 34 [108], 37-38 [118], 42 [133]-[134]. As I read his Honour's judgment, the key reason why his Honour preferred a bright line rule of this kind is that it would ensure that legal professional privilege was not extended beyond the rationales that support it (at 37 [117]-[118]): 'Ensuring candid communications between a lawyer and a client is unlikely to be endangered if a privilege holder is held to waive privilege because he or she has voluntarily disclosed the communication to a stranger. Whether the communication will be disclosed in the future to a stranger to the privilege is entirely within the control of the client. At that stage, the client will determine whether his or her interests are best served by retaining the privilege or disclosing the communication. But it is difficult to see how the possibility of voluntary disclosure will prevent the client being candid with his or her lawyer. ... A client who voluntarily discloses privileged information to a stranger to the privileged relationship has made a choice, based no doubt on considerations personal to him or her, that the purpose for which the communication is disclosed to the stranger is more important than protecting the absolute confidentiality of the communication by preventing the stranger from having knowledge of it. The person may be encouraged to do so, as in Goldberg v Ng , by an expectation that the stranger will not further disclose the communication. But in my opinion, if privileged material is voluntarily disclosed to a stranger to the privileged relationship, the fact that it may be received under an obligation of confidence should not be relevant to whether privileged is waived.' On the facts, McHugh J considered that disclosure to a member of the Legislative Assembly who was not a member of the Executive Government was relevantly a disclosure to a stranger to the privileged relationship: at 44 [139]. In Goldberg v Ng , the respondents sued their solicitor, Goldberg, for failure to account for monies received and disbursed by him as their solicitor. They also made a professional conduct complaint against him to the Law Society of New South Wales. In answer to the complaint, Goldberg prepared statements, with annexures that included a draft brief to counsel, and submitted them to the Society's professional conduct department. In doing so, Goldberg told the Society that the statements and the annexures were confidential and he wished to retain his legal professional privilege in them. The Society dismissed the complaint on the ground that there was no evidence of professional misconduct or unsatisfactory professional conduct. Subsequently, in the course of the Supreme Court proceedings instituted by the respondents against Goldberg, the respondents served a subpoena on the Society requiring it to produce documents relating to the complaint against Goldberg. All of the members of the High Court held that there had been no express or intentional waiver by Goldberg of his legal professional privilege in the statements and annexures. The issue that divided the Court was whether waiver should be imputed by operation of law. Deane, Dawson and Gaudron JJ held at 100-102 that it should because the professional complaint and the Supreme Court proceedings were but different emanations of the one dispute, and Goldberg's provision of the statements to the Society was voluntary and for the calculated purpose of demonstrating the reliability of his denial of the alleged failure to account. Their Honours analysed the issue in terms of 'fairness', but they could equally, and perhaps more appropriately, have done so in terms of inconsistency. Toohey and Gummow JJ dissented in separate judgments. Each expressed the view that waiver should not be imputed because the disclosures by Goldberg were made to a third party for a limited and specific purpose. Toohey J said at 110 that the following factors militated strongly against any implied or imputed waiver: first, Goldberg disclosed material to the Society because of a complaint against him on an undertaking by the Society that the contents would be kept confidential; secondly, the disclosure was made in the context of the Society's investigation of a complaint in pursuance of its statutory powers and, consequently, it could be regarded as having been made for the purposes of the Act; and thirdly, the disclosure was confined to the Society. Gummow J said at 123 that, as the disclosures were made in the context of compulsory statutory processes, the circumstances of the case supplied no sufficient reason for depriving Goldberg of privilege, even allowing for the advantage he sought to gain by making the disclosure. The case of Restom v Battenberg [2006] FCA 781 provides an example of a case where disclosures to a third party triggered a waiver of legal professional privilege. In the course of bankruptcy proceedings, the debtor claimed privilege over a letter that passed between his Australian and Scottish solicitors. Stone J held that the disclosure of the contents of the letter to the Scottish Employment Tribunal was inconsistent with the maintenance of confidentiality in the letter and constituted a waiver of privilege. In Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275, which predated Goldberg v Ng and Mann , Giles J held that a limited and specific disclosure of privileged material, on terms of confidentiality, did not result in a loss of privilege. In Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253, Sackville J said that it follows from Goldberg v Ng that the disclosure of a privileged communication for a limited purpose and subject to a confidentiality requirement may, or may not, amount to a waiver of privilege, depending on the circumstances of the case: at 262-263 [42]-[43]. On the facts of that case, Sackville J held that a disclosure of legal advice to the solicitors and representatives of two other companies, on strict terms as to confidentiality and for the purpose of those other companies obtaining legal advice, did not result in an imputed waiver. His Honour distinguished Goldberg v Ng as a case in which the disclosure was made to gain an advantage over the opposing party in related litigation: at 263 [45]. There are several English cases in which disclosure to a third party for a limited and specific purpose has not resulted in a loss of privilege: British Coal Corporation v Dennis Rye Ltd (No 2) [1988] 1 WLR 1113 ( 'British Coal' ); Goldman ; and Gotha City v Southeby's (No 1) [1988] 1 WLR 1114. In British Coal , Neill LJ (with whom Stocker LJ and Dillon LJ agreed) held that the disclosure of documents by the plaintiff to the police to assist in a criminal investigation and criminal trial did not constitute a waiver of the privilege. Neill LJ said at 822: 'In my judgment the action of the plaintiff in making documents available for the purpose of the criminal trial did not constitute a waiver of the privilege to which it was entitled in the present civil proceedings. Its action in regard to both the category A and the category B documents was in accordance with its duty to assist in the conduct of the criminal proceedings, and could not properly be construed as an express or implied waiver of its rights in its own civil litigation. Indeed, it would in my view be contrary to public policy if the plaintiff's action in making the documents available in the criminal proceedings had the effect of automatically removing the cloak of privilege which would otherwise be available to them in the civil litigation for which the cloak was designed.' In Goldman , the Court of Appeal considered the effect of a statutory requirement that a claimant for costs must disclose privileged materials to the Court's taxing officers. Taylor LJ (with whom Woolf LJ and Lord Donaldson MR agreed) said that once a party puts forward privileged documents as part of his case for costs, the privilege is relaxed temporarily and pro hac vice . If the taxing officers felt compelled by natural justice considerations to disclose part or all of the contents of a privileged document to the opposite party, that disclosure would be for the purposes of the taxation only and would not amount to a waiver that prevented the owner of the document from reasserting privilege in any subsequent context: at 102. McHugh J took a stricter view in Giannarelli v Wraith (No 2) [1991] HCA 2 ; (1991) 171 CLR 592. His Honour noted that in Victoria, unlike in England, a litigant can refuse to produce documents to the taxing master on the grounds of legal professional privilege. However, McHugh J said that if the litigant choses to produce privileged documents to the taxing master, then the litigant will be taken to have waived privilege and must let the opposing parties see the documents. His Honour did not countenance any middle course under which privilege could be waived solely for the purposes of the taxation and then re-asserted in some other context: at 607. The general rule adopted in the United States is that any voluntary disclosure of privileged communications by a client to a third party breaches the confidentiality of the attorney-client relationship and therefore waives the privilege, not only as to the specific communication disclosed but as to all other communications relating to the same subject matter: see Weil v Investment/Indicators Research and Management Inc 647 F2d 18 (9 th Cir 1981) at 24; United States v Aronoff 466 FSupp 855 (DC NY 1979) at 862 [9]-[10]; In re Sealed Case 676 F2d 793 (DC Cir 1982) (' re Sealed Case' ) at 809 [6] [7]; United States v AT &amp; T Co 642 F2d 1285 (DC Cir 1980) at 1299; cf Diotima Shipping Corp v Chase, Leavitt &amp; Co ., 102 F.R.D. 532 (D Me 1984); von Bulow v von Bulow , 114 F.R.D. 71 (SD NY 1987); and T Harman, Fairness and the Doctrine of Subject Matter Waiver of the Attorney-Client Privilege in Extrajudicial Disclosure Situations (1988) University of Illinois Law Review 999. The US courts have also considered whether a disclosure of privileged material to government investigators will have the consequence of waiving privilege. In re Sealed Case , the United States Court of Appeals for the District of Columbia considered whether a corporation that had submitted its own investigating counsel's report into alleged bribes and improper payments to the Internal Revenue Service and the Securities and Exchange Commission ('SEC') pursuant to voluntary disclosure programs had thereby impliedly waived its privilege over documents which were clearly identified in the report. The Court held that, by revealing part of privileged communications to the agencies to gain a commercial advantage, the corporation had made a disclosure which was inconsistent with the maintenance of confidentiality. Accordingly, the Court held that the corporation had waived privilege as to all other communications relating to the same subject matter. The principle applied by the Court was that (at 818 [29]): 'Courts need not allow a claim of privilege when the party claiming the privilege seeks to use it in a way that is not consistent with the purpose of the privilege. Thus, since the purpose of the attorney-client privilege is to protect the confidentiality of attorney-client communications in order to foster candor within the attorney-client relationship, voluntary breach of confidence or selective disclosure for tactical purposes waives the privilege. Disclosure is inconsistent with confidentiality, and courts need not permit hide-and-seek manipulation of confidences in order to foster candor.' The Court rejected an argument that waiver should not be imputed because the corporation had disclosed the investigating counsel's report for specific and limited purposes only. In doing so, it declined to follow the decision in Diversified Industries Inc v Meredith 572 F2d 596 (8 th Cir 1977) ( 'Diversified Industries' ) at 611 in which the Eighth Circuit Court of Appeals held that disclosures to the SEC under a voluntary disclosure program did not constitute a waiver to anyone but the SEC. It noted that the decision in Diversified Industries was rejected in Permian Corp v United States 665 F2d 1215 (DC Cir 1981) at 1220-1222 on the ground that it unnecessarily expanded the scope of attorney-client privilege: see also In re Weiss 596 F2d 1185 (4 th Cir 1979) at 1186. Like the District Columbia Circuit, the First, Third, Fourth, Sixth and Federal Circuit Courts of Appeal have rejected the approach adopted by the Eighth Circuit in Diversified Industries : see AM Pinto, Cooperation and Self-Interest are Strange Bedfellows: Limited Waiver of the Attorney-Client Privilege through Production of Privileged Documents in a Government Investigation (2004) 106 West Virginia Law Review 359, p 372; RH Porter, Voluntary Disclosures to Federal Agencies Their Impact on the Ability of Corporations to Protect from Discovery Materials Developed During the Course of Internal Investigations (1990) 39 Catholic University Law Review 1007, pp 1029-1052. The US courts have accepted that there will be no imputed or implied waiver of privilege if the disclosure of the privileged material is involuntary and compelled by law: see eg Trans America. The Canadian courts apply a waiver test that is based on considerations of fairness and consistency: see S &amp; K Processors Ltd v Campbell Ave Herring Producers Ltd (1983) CPC 146 (BCSC) at 150; Professional Institute of the Public Service of Canada v Canada (Director of the Canadian Museum of Nature) [1995] 3 FC 643 ; British Columbia (Securities Commission) v BDS (2000) BCJ No 2111 (BCSC), affirmed (2003) 226 DLR (4 th ) 393; and RD Manes and MP Silver, Solicitor-Client Privilege in Canadian Law , Butterworths, 1993, p 207. As in the United States, waiver will not be imputed if privileged material is produced to a government regulator under compulsion of law. Putting to one side its provision of Mr Tracey QC's advices and instructions and its briefings to the Australian Government, AWB disputed that the disclosures it made to the IIC and the Commission disclosed the gist or substance of legal advice that AWB obtained as a result of Project Rose or Project Water. It contended that these disclosures did no more than refer to the existence of legal advice, without disclosing its substance. Alternatively, AWB argued that the record of Lindberg's interview with the IIC, and the evidence given to the Commission by Lindberg, Cooper and Scales, cannot be related to any particular piece of legal advice, other than that provided by Mr Tracey QC. The applicable principles are set out in my decision in AWB v Cole at [135] [139]. The authorities draw a distinction between a mere reference to the existence of legal advice, which will not usually amount to a waiver, and cases in which the gist or substance of the legal advice has been disclosed: see Maurice at 481, 488 and 493; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15 ; (1996) 70 ALJR 603 at 607; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12; Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 at 376-377; and Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 (' Bennett' ) at 104-105 [6] [9]. In Bennett , the Full Court (Tamberlin, Emmett and Gyles JJ) held that legal representatives of the Australian Customs Service had waived privilege in legal advice by stating openly that they had given advice to Customs that a particular regulation did not prohibit public comment by an officer on matters of public administration. The trial judge had held that a disclosure of the legal position or stance that a lawyer had advised a client to take was not inconsistent with the maintenance of confidentiality in the communication giving the advice. The trial judge also appeared to draw a distinction between statements which disclose the conclusion or logical result of legal advice, and statements which disclose the content of the legal advice and its reasoning: see Tamberlin J at 105 [10] and Gyles J at 118 [61]. The Full Court rejected this approach. Gyles J stated at 119 [65] that the voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made, including the reasons for the conclusion. Tamberlin J said at 104 [6]: 'In my view, it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion. It may perhaps have been different if it had been simply asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion. This is the situation in this case.' Subsequently, Tamberlin J was confronted with a case that was very similar to the one he hypothesised in Bennett . In Nine Films and Television Pty Ltd v NINOX Television Ltd (2005) 65 IPR 442, the applicant contended that the respondents had waived privilege in various legal advices because of the way in which the respondents had publicly referred to the advice. Tamberlin J held that there had been no waiver. He concluded that the mere assertion that advice had been taken, and the fact that action is then taken by the client, is not sufficient, unless the two are linked in such a way that it is apparent that the advice is that specified action should be taken. His Honour also made the following observations at 446-447 [26]: 'Whilst I accept that, in some circumstances, a clear disclosure of the "bottom line" of the advice, and the course of conduct taken thereafter, may be sufficient to amount to waiver of legal professional privilege, I do not think these matters have been established in the present case. On a fair and reasonable reading, the statement to the effect that senior counsel had been engaged and that he had reviewed matters in detail and that steps were being taken based on his recommendations is not sufficient to amount to a waiver of the legal advice. The substance or content of the advice is not disclosed with specificity or clarity. Questions of waiver are matters of fact and degree and, in this instance, I am not persuaded that the conduct, assertions or admissible evidence are sufficient to warrant the necessary implication that legal professional privilege has been waived.' The principles discussed in Bennett were applied in Seven Network Ltd v News Ltd (No 12 ) [2006] FCA 348. The issue was whether a statement in a discovered document that '[o]ur legal advice is that the risk of damages being awarded against Optus is low' had the consequence of waiving privilege in the legal advice that it referred to. Sackville J held that it did; the statement voluntarily disclosed the gist or conclusion of the legal advice: at [12]. In Rio Tinto Ltd v Commissioner of Taxation (2005) 224 ALR 299, the Commissioner of Taxation filed particulars with the Court stating that the Commissioner would be relying on specified grounds 'which have been confirmed by Senior Tax Counsel... and supported by AGS... and opinions obtained from counsel'. The taxpayer contended that the Commissioner had thereby waived privilege in the legal advice of the Australian Government Solicitor and the opinions of counsel. Sundberg J held that these references voluntarily disclosed the conclusion or substance of the advice and consequently privilege had been waived. Sundberg J's decision went on appeal to the Full Court, but the Full Court's decision turned on the alternative ground of issue waiver: Rio Tinto at [72]. The Full Court considered that, in the particulars, the Commissioner had made an assertion that put the contents of the documents containing legal advice in issue, or necessarily laid them open to scrutiny, with the consequence that there was an inconsistency between the making of the assertion and the maintenance of the privilege. AWB submitted that the reasoning in Bennett was unsound, particularly the holding that the disclosure of the conclusion stated in legal advice will amount to a waiver of the whole of the advice. AWB did not refer to any authorities that supported this submission and I reject it. In my view, it is well established that a voluntary disclosure of the gist, substance or conclusion of legal advice will amount to a waiver in respect of the whole of the relevant advice. ASSOCIATED MATERIAL Turning to the scope of any imputed waiver, it is well established that a voluntary disclosure of privileged documents can result in a waiver of privilege over those documents and associated material. The test applied to determine the scope of any waiver of associated material is whether the material that the party has chosen to release from privilege represents the whole of the material relevant to the same issue or subject matter: Maurice at 482 and 484 per Gibbs CJ, 488 per Mason and Brennan JJ, and 498 499 per Dawson J. In Maurice , Gibbs CJ said at 482: '... Similarly, where a party disclosed a document which contained part only of a memorandum which dealt with a single subject-matter, and then read the document to the judge in the course of opening the case, it was held that privilege was waived as to the whole memorandum: Great Atlantic Insurance Co v Home Insurance Co . In that case Templeman LJ said: " ... the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading, that the party who possesses the document is clearly not the person who can decide whether a partial disclosure is misleading or not, nor can the judge decide without hearing argument, nor can he hear argument unless the document is disclosed as a whole to the other side. Once disclosure has taken place by introducing part of the document into evidence or using it in court it cannot be erased." The same test must be applied in deciding whether the use in legal proceedings of one document impliedly waives privilege in associated material. In Nea Karteria Maritime Co Ltd v Atlantic &amp; Great Lakes Steamship Corporation [No 2] Mustill J dealt with this question and suggested the following test: " ... where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood."' Dawson J discussed the authorities at 498-499: 'In Geo. Doland Ltd v Blackburn Robson Coates &amp; Co waiver of privilege with respect to a conversation between solicitor and client, which took place before litigation was contemplated, was held to extend to any other communications in relation to the subject-matters of the conversation, although the implied waiver was held not to cover similar documents which came into existence for the purpose of prosecuting the litigation. This decision was not followed in General Accident Corporation Ltd v Tanter where a distinction was drawn between the waiver of privilege before a trial and the further waiver of privilege by calling evidence in a trial. In the latter situation the waiver was held to extend to the transaction constituted by the privileged communication but not to the subject-matter of that communication arising upon other privileged occasions. General Accident Corporation Ltd v Tanter has been criticized for the distinction which it draws between waiver by the tender of evidence of a privileged communication and waiver by the disclosure of the communication in some other way and for the restriction which it places upon the extent of associative waiver: see Phipson on Evidence , par 15-20. In Nea Karteria Maritime Co Ltd v Atlantic &amp; Great Lakes Steamship Corporation [No 2] , a broader view was taken by Mustill J that " ... where a party chooses to deploy evidence which would otherwise be privileged the court and the opposition must, in relation to the issue in question, be given the opportunity to satisfy themselves that they have the whole of the material and not merely a fragment". This view was approved by the Court of Appeal in Great Atlantic Insurance Co v Home Insurance Co . In the United States it has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege with respect to all other such communications upon the same subject-matter: Weil v Investment/Indicators, Research and Management and the cases there cited; Diotima Shipping Corp v Chase, Leavitt &amp; Co ; United States v Aronoff ; In re Sealed Case .' AWB relied upon the way in which the principle was formulated by the Court of Appeal in British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197 ; (2002) 7 VR 524 at 564 [121] : 'A reference in one letter of advice to an earlier letter of advice does not expose the latter to scrutiny by the other party to litigation merely because legal professional privilege is waived in relation to the former: implied waiver is not so generous a doctrine. As we apprehend it, where legal professional privilege is waived in relation to one piece (or part) of advice, the privilege is impliedly waived in relation to another if - and only if - that other is necessary to a proper understanding of the first. As established by the High Court (at least since Mann v. Carnell ) the test in such cases is whether it would be "inconsistent" for a party to rely upon, and so to waive legal professional privilege in respect of, the one without also being taken to have waived privilege in respect of the other.' It is no doubt correct that a mere reference to the existence of legal advice in a disclosed document will not be regarded as a waiver of its contents, albeit a different conclusion would follow if the gist, substance or conclusion of the legal advice is voluntarily disclosed. But, with great respect to their Honours, the proposition concerning waiver of associated material is expressed too narrowly and in a way that is not consistent with the test propounded by the High Court in Maurice . The principle propounded by the Court of Appeal may work adequately enough in some circumstances, particularly where privilege is sought to be maintained over one part of a single piece of legal advice, but in other circumstances it will not give effect to the principles explained in Maurice. A common application of associated material waiver relates to the case where an expert report has been prepared in reliance upon other documents. In Australian Securities &amp; Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 at 441-442 [21], Lindgren J summarised the applicable principles: '1. Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 Ch D 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J. 2. Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 (Propend)...; Interchase , per Pincus JA; Spassked Pty Ltd v Cmr of Taxation (No 4) (2002) 50 ATR 70 at [17]. 3. Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161-2 per Thomas J. 4. Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 481... per Gibbs CJ, CLR 487--488... per Mason and Brennan JJ, CLR 492-493... per Deane J, CLR 497--498... per Dawson J; Goldberg v Ng [1995] HCA 39 ; (1995) 185 CLR 83 at 98... per Deane, Dawson and Gaudron JJ, CLR 109... per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870... ; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89... at [46] . 5. Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148--150 per Pincus JA, at 161 per Thomas J. 6. It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report: cf Dingwall v Commonwealth of Australia (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400;... ACCC v Lux at [46].' In Thomas v New South Wales [2006] NSWSC 380 (' Thomas' ), McClellan CJ at Common Law applied these principles to the documents which underpinned or supported the advice of counsel. His Honour stated at [17]: 'Although in the present case the primary document for which privilege was expressly waived was the advice of counsel, I can discern no difference in principle between such an advice and the advice or report of an expert retained for the purpose of the litigation. As I have indicated, I am satisfied that counsel relied upon instructions which they were given and, it would appear, relied upon medical reports in a way which influenced the content of the advice which they gave. Accordingly, insofar as there are documents which were relied upon in the preparation of the advice falling within categories 1, 2, 3 and 5 of the notice to produce, the service of the affidavit impliedly waived privilege in those documents.' Later at [20] his Honour said: '... In the present case the plaintiff disclosed the advice in these proceedings for the purpose of obtaining whatever assistance he could from that advice in pursuit of his claim. To my mind, that disclosure waived his privilege both in the advice itself and the documents which were used by counsel and which influenced the content of the advice. Waiver having occurred, the fact that the advice was not ultimately tendered is, to my mind, not relevant. Having sought an advantage, the plaintiff was bound by the course he had taken and accordingly is amenable to producing the relevant documents in response to an appropriate notice to produce.' In Newcrest Mining (WA) Limited v Commonwealth (1993) 40 FCR 507, French J applied the principle of associated material waiver in a case where one joint venturer disclosed significant elements of legal advice it had obtained in relation to mining leases held by the joint venture partners. His Honour held that the disclosure brought about an implied waiver of other legal advices obtained by the other joint venturers in relation to the mining leases. His Honour said at 509 that it was significant that the disclosures were made for the benefit of the joint venture as a whole and, although there was no direct evidence on the point, he considered that it was difficult to imagine that the disclosures would have occurred against the wishes of the other joint venturers or indeed without their consent. In England, the principle has been applied to documents which underpin or support expert evidence: see Dunlop Slazenger International Ltd v Joe Bloggs Sports Limited [2003] EDWCA Civ 901; Mayne Pharma Pty Ltd v Debiopharm SA [2006] EWHC 164 (Pat); and L'Oreal SA v Bellure NV [2006] EWHC 1503 (Ch). Several English cases illustrate the practical operation of the principle. In Nea Karteria Maritime Co Ltd v Atlantic &amp; Great Lakes Steamship Corporation (No 2) [1981] Com LR 138 (' Nea Karteria' ), a lawyer gave evidence that he had conducted an interview on the basis of a list of questions prepared by the plaintiffs' lawyers. While privilege was waived with respect to the witnesses' answers, the plaintiffs sought to maintain privilege with respect to the list of questions: at 139-140. Mustill J (as his Lordship then was) held at 140 that privilege over the list of questions had been waived by implication: 'It seems to me that the written questions were, so to speak, part of the meeting. They were in a sense an agenda for the meeting. They formed the basis for one-half of the exchange between the lawyer and [the witness]. Evidence to that effect having been given by the lawyer, it seems to me that privilege must have been waived for those questions. And I think the interests of justice, which I believe to underlie the authorities on this part of the case, demand that the opposition and the court should have an opportunity to satisfy itself as to the accuracy of the evidence given to the lawyer as to the way in which he conducted the interview.' Mustill J drew a distinction at 140 between the instructions to the lawyer who carried out the questioning and the questions themselves; the instructions did not play a part in the meeting, did not form part of the body of events upon which the Court had to reach conclusions of fact, and were merely part of the prior history of those events. In R v Secretary of State for Transport; Ex parte Factortame (1997) 9 Admin LR 591 at 599, Auld LJ made the following observations concerning the application of the test stated in Nea Karteria : 'Much depends on whether the party making partial disclosure seeks to represent by so doing that the disclosed documents go to part or the whole of an "issue in question", the expression used by Mustill, J in the passage from his judgment in Nea Karteria that I have cited. The issue may be confined to what was said or done in a single transaction or it may be more complex than that and extend over a series of connected events or transactions. In each case the question for the court is whether the matters in issue and the document or documents in respect of which partial disclosure has been made are respectively severable so that the partially disclosed material clearly does not bear on matters in issue in respect of which material is withheld. The more confined the issue, for example as to the content of a single document or conversation, the more difficult it is likely to be to withhold, by severance, part of the document or other documents relevant to the document or conversation.' In Fulham Leisure Holdings Ltd v Nicholson Graham &amp; Jones [2006] 2 All ER 599 (' Fulham' ) at 604 [11], Mann J suggested that it was helpful to approach the application of the test stated in Nea Karteria in three steps: first, identify the transaction in respect of which the disclosure has been made; secondly, ascertain from the nature of the disclosure or other evidence whether the transaction is wider than an advice given on a single occasion, if so, the whole of the wider transaction must be disclosed; and thirdly, the disclosure of the whole transaction may make it plain that further disclosure is necessary to avoid unfairness or misunderstanding of what has been disclosed. Mann J added at 607 [18] that once the transaction has been identified the cases show that the whole of the material relevant to that transaction must be disclosed. It is not open to a waiving party to say that the transaction is simply what the party has chosen to disclose; the court will determine objectively what the real transaction is so that the scope of the waiver can be determined. His Lordship also said that the application of these principles will be very fact sensitive and will vary from case to case: at 607 [19]. WAIVER HAS BEEN ESTABLISHED At [70] to [126] above, I set out my findings as to the precise terms in which AWB disclosed the results of its legal reviews and legal advice it had obtained to the Australian Government, the IIC and the Commission. Overall, I am satisfied that by means of these disclosures, AWB deployed the gist or substance of legal advice it had obtained. Moreover, I am satisfied that AWB made a conscious and voluntary decision to deploy this legal advice in its dealings with the Australian Government, the IIC and the Commission because it considered that it was in its commercial interests to do so. These actions are inconsistent with the maintenance of confidentiality in the legal advice. Having regard to the nature, purpose, terms and extent of its disclosures, I am also satisfied that AWB acted inconsistently with the maintenance of confidentiality over the associated material which underpinned the legal advice. While these overall conclusions are relevant and important, I have taken the view that it is necessary and appropriate for me to make specific findings as to the nature and consequences of each such disclosure. I turn to that task. In his various statements to the Australian Government, Hargreaves did not merely refer to the existence of legal advice. Nor did he simply disclose the legal advice which had been obtained by AWB from Mr Tracey QC. He described in some detail the findings and conclusions that had been arrived at by AWB's own legal review. In my opinion, Hargreaves thereby disclosed to the Australian Government the gist or substance of legal advice that AWB had obtained (as at the relevant dates at which he made his disclosures) that there was no evidence of: &#8226; corruption by AWB &#8226; side payments or after sales payments by AWB to the former Iraqi regime &#8226; any knowledge on the part of AWB that Alia was connected with the Iraqi regime or that payments were being channelled by Alia to that regime &#8226; any conduct by AWB that resulted in breaches of the United Nations' sanctions &#8226; any other wrongdoing or improper conduct by AWB in connection with the supply of wheat to Iraq under the OFF Programme. When Hargreaves gave his briefings to officers of the Australian Government, he expressed himself in terms that were apt to refer, and which a reasonable listener would have understood as referring, to the combined effect of all of the legal advice that AWB had received as at the date of the relevant briefing. Hargreaves would not have been understood as referring only to a particular piece of historical advice, regardless of whether it was overtaken, or qualified, or supported by later advice. His assertions purported to represent the current state of affairs. Hargreaves' memorandum of 25 June 2005 makes it quite clear that his statements to the Australian Government were based upon all of the legal advice AWB had obtained, and not simply the advice it had obtained from Mr Tracey QC. It cannot be disputed that Hargreaves disclosed the substance of the legal advice which Blakes provided to AWB's board on 25 May 2004. AWB has already formed that view and acted on it by producing Blakes' power point presentation to the Commission. But in my view the consequence of Hargreaves' disclosures cannot be confined to Blakes' advice of 25 May 2004 and Mr Tracey QC's advices. Through the remainder of 2004 and until Hargreaves had his last meeting with Ms Carayanides in the period between 16 June 2005 and September 2005, Hargreaves met with Australian Government representatives several times and continued to make assertions that AWB's independent legal review had not identified any wrongdoing by AWB. The evidence shows that Blakes and Minters continued the legal review in 2004 and 2005 and provided ongoing legal advice to AWB. It is not open to a waiving party to say that the disclosures relate simply to one advice and not others, or that the relevant transaction is simply what the party has chosen to disclose; the Court will determine objectively what has been disclosed: see Fulham at 607 [18]. Hargreaves' memorandum of 25 June 2005 makes it plain that he deliberately deployed AWB's legal advice in his dealings with the Australian Government. He did so as part of AWB's strategy to secure the continued support of the Federal Government, both generally and in relation to AWB's dealings with the IIC and the United States Government. Hargreaves also deployed the advice in pursuit of the objectives that he set out in his memorandum; they included protecting and defending the reputation of AWB both within Australia and overseas, and minimising any attack by US wheat interests on AWB's position as the exclusive manager of wheat exports from Australia. Given these strategic objectives, it was important for AWB to disclose, indeed to stress, that it had conducted an extensive independent legal review which had found no evidence of any wrongdoing by AWB in connection with its exports of wheat to Iraq. By disclosing its legal advice to secure these objectives, AWB assumed the risk that it would be held to have waived legal professional privilege in connection with legal advices it obtained in the course of the legal review. Having regard to the legal principles governing waiver, I consider that any legal advice that AWB obtained from Blakes or Minters prior to Hargreaves' last meeting with Ms Carayanides on any of the subject matters, or relating to any of the issues, described at [180] above, has been waived by reason of the disclosures made by Hargreaves. Those subject matters and issues are wide enough to encompass the Tigris transaction and the iron filings claim. If AWB obtained legal advice during this period on those subject matters, or relating to those issues, from persons other than Blakes or Minters such as ABL, Mr Tracey QC or others, that advice has also been waived by Hargreaves' disclosures. I am satisfied that the disclosures to the IIC involved a disclosure by AWB of the gist or substance of legal advice that it had obtained by 28 February 2005. The disclosure occurred at two points. First, when Lindberg was interviewed on 28 February 2005, the interview took place in the presence of AWB's legal representative. AWB had the ability to object to any statements by Lindberg that intruded into areas covered by legal professional privilege. No objection was raised to Lindberg's statement that the legal review conducted by Cooper had found nothing that would substantiate claims of fraud or corruption by AWB or payments by AWB to individuals in the Government of Iraq. Secondly, AWB was directly involved in providing the record of interview, as revised by Lindberg and AWB's lawyers, to the IIC. In my opinion, the record of interview describes the gist or substance of legal advice which AWB had obtained as a result of its legal review. As with Hargreaves, Lindberg's assertions purported to describe the current state of affairs, ie, as at 28 February 2005. There is no reason to read his assertions as if they were confined to legal advice obtained from Mr Tracey QC. It extends, in my view, to any legal advice obtained by AWB from Blakes, Minters and Mr Tracey QC, and any advice from others, prior to 28 February 2005 that deals with the same subject matters or relates to the same issues as the advice that Lindberg described. I am satisfied that the disclosures to the IIC were made deliberately and consciously by AWB with a view to obtaining a finding from the IIC that AWB had not engaged, or at least had not knowingly engaged, in conduct that involved making payments to the Iraqi regime in breach of the United Nations' sanctions. Lindberg and AWB went out of their way to stress that the company had undertaken a legal review which had found nothing to substantiate claims of fraud, corruption or improper payments to the Iraqi regime. The disclosures were made with the knowledge and intention that they would be referred to by the IIC in its final published report. Accordingly, I find that AWB consciously and voluntarily deployed its legal advice with the object and intention of furthering the company's commercial and other interests. AWB contended that the disclosures which Lindberg made at his meeting with the Minister for Foreign Affairs on 4 October 2005 were confined to the advice given by Mr Tracey QC. This is a possible interpretation of the Department's minute, but in my view Lindberg's statements are not to be read, and would not have been understood, so narrowly. Later in the meeting, Lindberg said that AWB had acted in accordance with the sanctions regime and that this had been supported by legal advice. This statement was expressed broadly and was not confined to 'independent legal advice'. In my view, Lindberg disclosed, and a reasonable listener would have understood that Lindberg was disclosing, the gist or substance of all of the legal advice that AWB had obtained up to 4 October 2005 in relation to the question whether AWB had acted in accordance with the sanctions regime. The disclosure extends to Mr Tracey QC's memorandum of advice dated 22 September 2005 and Professor Wippman's advice dated 27 September 2005. At the meeting with the Minister for Foreign Affairs, Lindberg, Stewart and other representatives of AWB were providing AWB's answer to the IIC's draft findings, as communicated to AWB in the IIC's letter of 26 September 2005. The minute shows that AWB's representatives were very concerned to explain AWB's claims of innocence and to secure the Government's ongoing support. Lindberg told the meeting that the IIC had ignored AWB's explanations and that the so-called evidence relied on by the IIC did not support its factual findings. In support of these contentions, Lindberg asserted that AWB had legal advice confirming that AWB had not acted in contravention of the sanctions regime. I infer that AWB made a conscious and voluntary decision to deploy this legal advice at the meeting with the Minister so as to secure the ongoing support of the Australian Government. In doing so, it assumed the risk of any consequential waiver of legal professional privilege. In my opinion, Blakes' presentation to AWB's board on 25 May 2004 constituted legal advice for the purposes of the doctrine of legal professional privilege. AWB withdrew its claim of privilege and produced the complete presentation to the Commissioner in April this year. The presentation not only discloses the substance of the legal advice from Blakes, but also some of its detail and foundations. In my opinion, one consequence of this disclosure is that AWB has waived privilege over any other legal advice that it obtained prior to 25 May 2004 in relation to the same subject matters or the same issues as Blakes addressed in its presentation. AWB contends that Lindberg's evidence to the Commission on 17 January 2006 did not disclose the gist or conclusion of any legal advice. I disagree. In my opinion, it disclosed the gist or substance of legal advice that AWB had previously obtained as to whether AWB had engaged in conduct in breach of the United Nations' sanctions and whether AWB had paid inland transportation fees to Alia as a conduit for the payment of money to the Iraqi regime. In the course of his evidence, Lindberg went out of his way to assert that the legal review that Cooper had instituted, assisted by external legal advisers, had reported periodically and did not find any evidence to substantiate the allegations that AWB had made payments in breach of the sanctions. In one instance at least, Lindberg's assertions to this effect were not directly responsive to the question asked of him by counsel assisting the Commission. Lindberg gave these answers in the presence of counsel for AWB without any objection being raised on grounds of legal professional privilege. I am satisfied that, by means of this evidence, AWB voluntarily deployed the legal advice that it had obtained prior to 17 January 2006. I infer that it did so because it considered it was in its interests for it to be publicly known that AWB had conducted an extensive legal review which had found no evidence of any wrongdoing. In his evidence, Lindberg specifically referred to a series of periodical reports from those undertaking the legal review: 'there were a number of reports, and the findings of those reports are recorded in the minutes and the basis of those findings has been communicated in letters that have been sent to the government and elsewhere'. I find that in his evidence to the Commission Lindberg was referring to the combined effect of all of the legal advice that AWB received during the course of the internal review as periodical reports were made to the boards of AWB and AWBI. It follows, in my view, that Lindberg's evidence has the consequence that AWB has waived privilege over any legal advice that it obtained in the course of the review that goes to the same subject matters, or relates to the same issues, as the legal advice that Lindberg described in the course of his evidence. In relation to Mr Tracey QC's advices, AWB produced his written advices of 8 June 2004, 31 March 2005 and 12 August 2005 to the Commission early in April 2006. In my view, the consequence of this production is that AWB must be taken to have waived legal professional privilege in any other legal advices that it obtained prior to Mr Tracey QC's last advice of 12 August 2005 in relation to the same subjects or issues. As already mentioned, I also consider that, quite separately, AWB has waived privilege over the advice it obtained from Mr Tracey QC on 22 September 2005 in relation to Resolution 661. As a result of the Project Water investigations, the directors of AWB obtained legal advice from Cooper at the board meeting on 14 December 2004 that the Tigris transaction complied with all necessary laws and involved no breaches of law. A handwritten note of that advice has been produced to the Commission. AWB was entitled to claim that this note was protected from production to the Commission by legal professional privilege. It did not claim privilege. I infer that it did not do so because it wanted it to be known publicly that AWB had advice as of 14 December 2004 to the effect that the Tigris transaction complied with all necessary laws and involved no breaches by AWB. Having disclosed the gist or substance of its legal advice in this manner, it would be inconsistent to allow AWB to maintain confidentiality and privilege in any other legal advices that AWB obtained prior to 14 December 2004 dealing with the same subject matter or the same issues. The advice that Cooper gave to AWB's board on 14 December 2004 related specifically to the Tigris transaction. However, I consider that the other disclosures that I have already discussed were expressed in such broad terms that they encompassed any advices concerning the Tigris transaction and/or the iron filings claim. As a result, I consider that there has been a waiver of other advices about the Tigris transaction, such as Mr Tracey QC's memorandum of 26 October 2004 (document 353A). The cumulative effect of AWB's disclosures is that, down to 17 January 2006 when Lindberg gave evidence to the Commission, AWB was openly claiming that its legal advice showed that there was no evidence that it had engaged in any wrongdoing in connection with its supply of wheat to Iraq under the OFF Programme, including wrongdoing of the kind described at [180] above. I find that AWB made these claims to advance its commercial interests. AWB's conduct is inconsistent with the maintenance of confidentiality in any advices dealing with the same subjects or issues. In addition, Lindberg, Cooper and Scales gave evidence to the Commission that AWB obtained legal advice that the proceeds of the inflated prices in contracts A1670 and A1680 should be disbursed to Tigris to the extent of approximately US$7 million. That evidence was given in the presence of AWB's legal representatives without any objection being raised on grounds of legal professional privilege. Again, I infer that AWB was content for it to be publicly known that it had obtained that legal advice. Having disclosed the gist or substance of that advice, AWB is bound to disclose any other legal advices it obtained in relation to the same subject or same issue. AWB's revised list of privileged documents contains several advices relating to the Tigris payment. They include documents 337 and 385. Documents 1088, 1089, 1092, 1093 and 1094 record the substance of those advices in minutes of meetings held by the AWB and AWBI boards in December 2004 and February 2005 and the chairman's running sheets for the February 2005 meetings. The evidence which Lindberg, Cooper and Scales gave in public before the Commission is inconsistent with AWB's attempt to maintain privilege in these documents. One question which remains to be dealt with is whether the scope of the waiver that must, in my view, be imputed to AWB is to be confined to any other legal advice that AWB obtained prior to the date of the relevant disclosures that addressed the same subject matters or issues as the advice that AWB voluntarily disclosed. In my opinion, the waiver is not so confined. It extends to the documents and information which were taken into account in formulating, or which otherwise underpinned or influenced, the legal advice that AWB has chosen to disclose. The Commonwealth argued that AWB's disclosures are broad enough to encompass any legal advice which AWB obtained, and any documents which AWB's lawyers reviewed or created, in the course of the Project Rose and Project Water investigations. The difficulty with this way of approaching the boundaries of the waiver of associated material is that the terms 'Project Rose' and 'Project Water' have an indefinite and imprecise ambit. According to the authorities discussed above, the limits of any waiver of associated material depend upon the nature of the advice that has been disclosed, what was represented by means of the disclosure, and the character of the transaction that gave rise to the disclosed legal advice. Regard must also be had to the way in which AWB's legal advice was described in the various disclosures. Essentially, by means of the disclosures, AWB was asserting that a detailed legal review had been undertaken, and that it had concluded that there was no evidence of any wrongdoing or other improper conduct by AWB in connection with its sale of wheat to Iraq under the OFF Programme. In my opinion, the nature and character of this disclosure is inconsistent with the maintenance of confidentiality in those documents which were taken into account by AWB's legal advisers in arriving at the advice they gave. To adapt the language used by McClellan CJ at Common Law in Thomas at [17] and [20], AWB's disclosures of its legal advice effect a waiver of privilege in the documents which were reviewed for the purposes of that advice or which influenced its content. Furthermore, AWB emphasised the breadth of its internal review in its various disclosures. In my view, AWB thereby waived privilege in documents which define the scope of the review or which reveal what investigations were in fact undertaken in the course of the review. Much the same answer follows if one asks what was the legal exercise or transaction that gave rise to the disclosed legal advice: see Factortame at 598-599; and Fulham at 604 [11] and 607 [18]. Having regard to the form of the legal advice disclosed by AWB, the relevant legal exercise or transaction encompassed a review of original documents and witness interviews, as well as summaries, chronologies or other analytical documents prepared by the lawyers, with a view to determining whether there was any improper or wrongful conduct by AWB. Material of this kind underpinned or influenced the legal advice which AWB has chosen to disclose, and it is not severable from that advice. There is a certain symmetry in defining the boundaries of the waiver of associated material in this way. Documents brought into existence in the course of a lawyer's factual investigation are, prima facie, capable of attracting legal professional privilege where the investigation is being undertaken for the dominant purpose of providing legal advice. If the client voluntarily discloses the gist or substance of the legal advice that is founded upon such investigations, the rationale for according privilege to the investigative material will have disappeared. While I would go further, the approach that I have described is not unlike the approach that AWB has already taken in connection with the production to the Commission of Mr Tracey QC's memoranda of advice and instructions. In the case of Mr Tracey QC's oral advice of 25 May 2004 and his confirmatory memorandum of 12 August 2005, AWB determined, correctly in my view, that the underlying documents supplied to Mr Tracey QC must also be produced. AWB considered that the form of Mr Tracey QC's advice (ie there was no evidence of wrongdoing) meant that it was impossible to separate his legal advice from the copy documents that were supplied to him as part of his instructions. The evidence before me does not reveal whether AWB adopted the same approach to Mr Tracey QC's advice of 31 March 2005. When he was asked to provide this advice, copy documents were supplied to Mr Tracey QC as part of his instructions but there is no evidence, one way or the other, as to whether those copy documents have been produced to the Commission. The substance of Mr Tracey QC's advice was that nothing in the documents supplied to him as of 31 March 2005 had caused him to vary his earlier advice of 25 May 2004. This advice cannot be separated from the documents that were supplied to him and, accordingly, AWB's express waiver of privilege in his advice extends to all of the documents and instructions supplied to him. The applicable principle can also be illustrated by reference to the advice that Blakes gave in its presentation of 25 May 2004. The advice that there was no evidence of any wrongdoing by AWB that involved a breach of the United Nations' sanctions was explicitly founded upon a review of a large number of documents and interviews of AWB personnel. Having regard to the form of its advice, it is impossible to separate Blakes' advice from the underlying documentation and interviews. However, the witness interviews and other materials that Blakes relied upon to formulate its advice have not been produced to the Commission and are still the subject of claims for legal professional privilege. In my opinion, those claims of privilege are not maintainable; privilege has been waived by (inter alia) the production of Blakes' advice. The same approach must be adopted to any advices that Blakes provided after 25 May 2004 on the question whether any evidence had emerged of any wrongdoing or improper conduct on the part of AWB. Another question which remains to be dealt with is the extent of any waiver that arises from AWB's production to the Commission of the instructions to Sir Anthony Mason. In its particulars setting forth its objections to AWB's privilege claims, the Commonwealth contended that these disclosures had brought about a waiver of legal professional privilege in relation to Project Rose. It tendered the instructions which ABL provided to Sir Anthony Mason on 16 September and 20 October 2005 and the expert opinion which Sir Anthony Mason provided dated 24 October 2005. However, the Commonwealth did not direct any submissions to this aspect of its waiver case, either orally or in its written submissions. Nor did AWB address any oral or written submissions to the consequences which flowed from its production to the Commission of the instructions to, and the advice obtained from, Sir Anthony Mason. It must be borne in mind that AWB is seeking a declaration that all of the documents set forth in its revised list of privileged documents are the subject of legal professional privilege. These documents include documents by which AWB obtained legal advice both in Australia and in the United States concerning the applicability of Resolution 661. The instructions to Sir Anthony Mason summarised the gist or substance of the very same legal advice. In these circumstances, I have concluded that the Court must take account of the evidence that has been placed before it. By disclosing the instructions given to Sir Anthony Mason, AWB has in my opinion disclosed the substance of legal advice it had obtained, as at 20 October 2005, both in Australia and in the United States, as to the applicability of Resolution 661. This disclosure encompasses Mr Tracey QC's memorandum of 22 September 2005 and Professor Wippman's advice of 27 September 2005. Thus far, I have identified the principles which define the boundaries of the waiver that is to be imputed to AWB, including the boundaries of any waiver of associated material. The remaining task in disposing of the waiver arguments is to determine precisely what documents fall within these boundaries. I have carried out that task by inspecting the documents over which claims of privilege have been made, reviewing the evidence concerning each document, and applying the principles identified above. As a result, I have determined that AWB has waived any legal professional privilege that would otherwise attach to the documents as listed under the heading 'Conclusions' below. THE IRON FILINGS CLAIM Communications between a lawyer and client which facilitate a crime or fraud are not protected by legal professional privilege. This principle is often referred to as the 'fraud exception' to legal professional privilege, but this does not capture its full reach: Attorney-General (NT) v Kearney [1985] HCA 60 ; (1985) 158 CLR 500 (' Kearney' ) at 515; Propend at 546; Clements, Dunne &amp; Bell Pty Ltd v Commissioner of Australian Federal Police (2001) 188 ALR 515 (' Clements' ) at 521-522 [30]. The principle encompasses a wide species of fraud, criminal activity or actions taken for illegal or improper purposes: see North J's review of the authorities in Clements at 522-526 [35]-[44]. The scope of conduct caught by the principle has been articulated in a variety of ways, often without particular precision: Propend at 545. Classic formulations have spoken of communications in furtherance of a 'crime or fraud': R v Cox and Railton (1884) 14 QBD 153 (' R v Cox' ) at 165; a 'criminal or unlawful proceeding': Bullivant v Attorney-General (Vic) [1901] AC 196 (' Bullivant' ) at 201; 'any unlawful or wicked act': Annesley v Anglesea (1743) 17 St Tr 1139 at 1229; and 'all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery, and sham contrivances': Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch 553 at 565. In Kearney , the High Court applied the principle to deny legal professional privilege to legal advice obtained by the Northern Territory Government which was prima facie a 'deliberate abuse of statutory power' to defeat a land claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). In his reasons for judgment, Gibbs CJ (with whom Mason and Brennan JJ agreed) stated at 515 that 'legal professional privilege will be denied to a communication which is made for the purpose of frustrating the processes of the law itself, even though no crime or fraud is contemplated.' Some authorities have expressed the principle as applicable to prevent a 'fraud on justice' in a broad sense. The concept of a 'fraud on justice' was adopted by Lander J in Gartner v Carter [2004] FCA 258 (' Gartner v Carter' ) to deny protection to a communication between a lawyer and client for the purpose of the client putting assets beyond the reach of the legitimate claims of secured creditors: at [130] and [139]-[140]. The principle extends to 'trickery' and 'shams'. A 'sham' refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471; see also Beazley v Steinhardt (1999) 106 A Crim R 21; affirmed on appeal in [1999] FCA 1255 (' Beazley' ). The recent case of Australian Securities &amp; Investments Commission v Mercorella (No 3) [2006] FCA 772 provides an example of the denial of legal professional privilege to documents in furtherance of a sham transaction. In that case, creditors of a managed investment scheme claimed privilege over documents relating to securities obtained from the defendant and certain companies in the scheme. The transactions were allegedly entered into so as to advance those creditors' interests over the interests of other creditors to the scheme. Mansfield J found that the communications were prima facie in furtherance of a sham and, as such, were not privileged. After referring to Lander J's decision in Gartner v Carter and Barclays Bank plc v Eustice [1995] 4 All ER 511 (' Barclays Bank '), his Honour stated at [95]: 'It is a short step from those decisions to the present facts, as prima facie found. The [creditors] engaged in the transactions reflected in the Deed, and the granting of the securities within the structures it created, to secure or advance their interests over others who had advanced money to [the first defendant] or to the Scheme. There is a prima facie case that the "restructure" of the advances so that they appear as advances to the partnership of Ajay and Opey is a sham.' Mansfield J drew a distinction at [96]-[100] between communications to obtain advice in relation to what, if anything, could lawfully be done to improve the prospects of being repaid or of obtaining the interest to which the client was entitled (which were privileged), and communications which have the effect of concealing the true nature of a transaction and which enable a client to present a picture which is not true (which were not privileged). Where a client is engaged in fraudulent conduct, communications with his or her lawyer in furtherance of the fraud are not privileged, regardless of whether the lawyer is a party to the fraud or not: Clements at 562 [213]. The principle applies to communications passing between a client and lawyer where the lawyer is innocent of the fraud or improper purpose: R v Bell; Ex parte Lees [1980] HCA 26 ; (1980) 146 CLR 141 at 145. Further, the fraud need not be that of the client or the lawyer; it may be that of a third party: Capar v Commissioner of Police (1994) 34 NSWLR 715; R v Central Criminal Court; Ex parte Francis &amp; Francis [1989] AC 346, cited with approval in Clements at 562-565 [217]-[218]. It is important to bear in mind that the fraud exception is based on public policy grounds. The principle is sufficiently flexible to capture a range of situations where the protection of confidential communications between lawyer and client would be contrary to the public interest: see Kearney at 514-515; R v Cox at 614. This aspect of the principle is reflected in the statement that '[t]he privilege takes flight if the relationship between lawyer and client is abused': Clark v United States (1933) 289 US 1 at 15; see also Kearney at 514 and 524. In Barclays Bank , communications between the client and his lawyer in relation to the setting up of transactions at an undervalue so as to prejudice the bank were held to be 'sufficiently iniquitous for public policy' to require those communications to be discoverable. Schiemann LJ (with whom Aldous and Butler-Sloss LJJ agreed) stated at 524: 'If that view be correct, then it matters not whether either the client or the solicitor shared that view. They may well have thought that the transactions would not fall to be set aside ... either because they thought that the transactions were not at an undervalue or because they thought that the court would not find that the purpose of the transactions was to prejudice the bank. But if this is what they thought then there is a strong prima facie case that they were wrong. Public policy does not require the communications of those who misapprehend the law to be privileged in circumstances where no privilege attaches to those who correctly understand the situation.' For the principle to apply, there must be more than a mere assertion or allegation of fraud or impropriety: Bullivant at 201, 203 and 204-205. In Propend at 514, Brennan CJ expressed the test as being one of 'reasonable grounds for believing' that the relevant communication was for an improper purpose. The requirement has also been described as one of a 'prima facie case': Butler v Board of Trade [1971] 1 Ch 680 (' Butler' ) at 689; cf Baker v Evans (1987) 77 ALR 565 at 574. In Kearney at 516, Gibbs CJ approved the test formulated in O'Rourke v Darbishire [1920] AC 581 at 604, namely that 'there must be something to give colour to the charge'; 'the statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact'. The High Court in Propend applied this test: at 514 per Brennan CJ, at 521 per Dawson J, 534 per Toohey J, 546 per Gaudron J, 556 per McHugh J, and 592 per Kirby J. It is not necessary to prove an improper purpose on the balance of probabilities. The 'prima facie' test arguably reflects the fact that issues of legal professional privilege are usually dealt with in the interlocutory stages of a proceeding, but the authorities have not departed from that formulation where a declaration is sought in relation to privilege issues: Butler ; Propend; Beazley . It must also be established, on the same prima facie basis, that the communication which is the subject of the claim for privilege was made in furtherance of, or as a step preparatory to, the commission of the fraud or wrongdoing. In Butler, Goff J found at 687 that a letter written by the plaintiff's lawyer which volunteered a warning that the plaintiff may incur serious consequences if he did not take care was not shown to be 'in preparation for or in furtherance of or as part of any criminal designs on the part of the plaintiff': see also Zemanek v Commonwealth Bank of Australia (unreported, Federal Court, Hill J, 2 October 1997). In Propend , the High Court considered whether a charge of improper purpose must be based on evidence that is admissible in the proceeding. The only evidence of alleged illegality before the trial judge in Propend was the sworn information which supported the issue of a search warrant for the relevant documents. The Court held that, while the sworn information was admissible to establish the basis upon which the warrant was issued, it was not admissible to show that the copy documents were not privileged: see at 514 per Brennan CJ, 557 per McHugh J, 576 per Gummow J, 547 per Gaudron J, and 593 per Kirby J. The iron filings claim refers to a claim by GBI for a rebate of US$2,016,133.00 on account of the fact that earlier shipments of wheat by AWB to GBI had been contaminated by iron filings. Lindberg agreed to pay this sum to GBI in settlement of the iron filings claim in about October 2002 during the course of a visit to Bagdad. An email dated 7 November 2002 from Chris Whitwell of AWB ('Whitwell') to Lindberg and others reporting on the trip to Iraq in October 2002 stated that the responsible Iraqi Minister had asked for repayment of the iron filings rebate through the 'inland transport mechanism'. The same email referred to the fact that the Iraqi Minister was seeking cabinet approval for repayment of the Tigris debt. At the outset of this case, the Commonwealth contended that any legal advice that AWB obtained in connection with the Tigris transaction was waived by virtue of AWB's production to the Commission of a partly masked memorandum of 7 February 2003 dealing with the subject of the iron filings payment and Tigris petroleum fee. On the first day of the hearing, AWB announced that it was no longer seeking a declaration of privilege in respect of documents connected with the Tigris transaction which the Commonwealth sought to challenge on the basis of the fraud exception. Subsequently, AWB made it clear that this concession did not extend to six documents relating to the iron filings rebate payment. During the course of the hearing in this Court, AWB produced an unmasked copy of the memorandum of 7 February 2003 and provided it to the Commonwealth. The Commonwealth tendered the memorandum as an exhibit in this proceeding, without any objection from AWB. The memorandum contains a fairly full description of the way in which AWB planned to pay the iron filings claim to GBI. The memorandum, which was sent by Whitwell to Messrs Geary and Long, with copies to Scales, Johnson, Hogan, Johnstone, Cooper, Lyons, Hockey and Thomas, states: ' PRIVATE AND CONFIDENTIAL This memo is in respect to refunding the Grain Board of Iraq the quality rebate of approx USD 2,016,133 through the inland transport payments for the new contract as requested by the Minister of Trade, Iraq. In addition, for the record IS &amp; M has negotiated (through an uplift in price] the recovery of a USD 8.375 million outstanding debt to Tigris by IGB through this contract. AWB will repay this debt back to Tigris less an agreed recovery fee of USD 500 K on a pro rata basis as tonnage is shipped. Overview Delegation led by Andrew Lindberg (August 2002) to Baghdad agreed to settle the contamination of the 'Iron Filings' vessels by paying them USD 6 pmt for each vessel total = USD 2,016,133 After being approached by Tigris Petroleum AWB and IGB have agreed to allow the new contract to be the conduit for a repayment of USD 8,375,000 owed to Tigris by IGB for a cargo of wheat shipped in 1996. IGB have agreed to raising the contract price by the debt amount and when payments are made under the Letter of Credit AWB will pay Tigris its debt less AWBs recovery fee. We have suggested the following during our last two visits. &#8226; Offsetting the debt against the Outstanding debt to 'Tigris petroleum' (approx USD 8.35 million) &#8226; Reducing the any new contract price [sic] by the amount of the rebate on a pmt basis &#8226; Repaying the debt through the provision of aid in some form - Wheat, Health supplies etc. However, in discussion with the Minister of Trade he has continually , insisted on repayment directly as an addition to the inland transport and said that this was his understanding of the agreement with Andrew Lindberg - Michael Long was present and confirms that this was discussed. Now that the new contract has been concluded ISM need a sign off to organise this payment when shipments start. Issues &#8226; Possible implications for AWB on a corporate governance basis ie/ direct payment to a company with links to the Iraqi regime may be construed to be in contravention of the UN Sanctions. The relevant UN Security Council Resolution is 661 (1990). This resolution provides at clause 4: "...All States shall not make available to the Government of Iraq or to any commercial, industrial or public utility undertaking in Iraq any funds or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to that Government or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within Iraq.... except payments exclusively for strictly medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs." In summary, this means that the Government of the Commonwealth of Australia would be obliged to prevent AWB Limited from making any remittance of funds to the IGB. AWB Legal opinion in this regard is set out below. This does not mean, however, that a payment might not be able to be made which will comply with the terms of the UN Resolutions. As a minimum, if AWB management determines to make the payment, then it should be made in the following circumstances: 1. The payment is made in installments over time and coincides with payments for future shipments of wheat (ie not a lump sum payment); 2. The payments preferably be made to a company other than the IGB and in a jurisdiction other than Iraq; and 3. The payments be recorded as being made as a part of a settlement reached between AWB and IGB, the terms of which contemplated that IGB would agree not to take any action against AWB for the alleged contamination of the 8 vessels in 2002 with iron filings AND would agree to enter into contracts for the purchase of Australian bulk wheat in the future in exchange for a renegotiation of the price on the 8 vessels. If we ensure that the above requirements are met, then Legal consider it will be at least arguable that we are not 'making funds or financial resources available to the Iraqi Government'. Instead, we are repaying part of the contract price for the 8 vessels following a re-negotiation of the sale price due to a downgrading of the grain (which potentially contained iron filings). In addition to the above the UN Security Council resolutions also require (resolution 986 (1995) clause 8) that the cost of food exports to Iraq must be met by draw down from the UN "escrow account". Furthermore draw down from the escrow account is only allowable under strict conditions. Those conditions include, at clause 8(a)(iii) that the goods to which payment is referable shall have arrived in Iraq. In this case, the goods have already arrived in Iraq and HAVE been paid for in full. However, the Resolutions are SILENT on the procedure for any repayment of part of the price in circumstances where there has been a quality complaint (and a subsequent renegotiation of price). This may therefore give us more scope to make the repayment to IGB. Even if we make payment as outlined above, there is still a risk that the Australian Government and/or the United Nations will take a contrary view on the interpretation of the above mentioned resolutions and declare that AWB has breached the terms of those resolutions by making the payment. This is a commercial and political issue, which AWB's management will need to consider. &#8226; According to an informal discussion with DFAT any repayment of a quality rebate should be either re-payed through UN ESCROW account or as a contract price reduction however they have not had a full legal argument put in front of them or been told officially. In Public affairs opinion as long as the repayment is legal and could not be seen to be breaking UN Sanctions then we should proceed (with the proviso that we have an independent legal opinion to that effect - see above legal opinion). Public Affairs also expressed concern that this would not be well received by the UN OIP office and that there was a reasonable chance of them finding out. IS &amp; M on the other hand do not want them involved and feel confident that this issue could be handled without the need for the OIP to be consulted. It has been articulated to us and we have circumstantial evidence that other participants in the OIP program (Russian and Pakistani companies) have had to sort out quality problems in a similar way and it is unlikely either their national governments or the OIP were consulted &#8226; IS &amp; M feel strongly that a failure to repay the IGB as discussed will lead to serious consequences for AWBs relationship with the IGB. IS &amp; M also believe that failure to refund this agreed debt in this way would have serious implications for the execution of the new contracts. AWBI are aware of all the issues laid out above and in light of the commercial imperative of this situation agree with the recommendation as laid out below. They do however insist that the Managing Director is appraised of the situation. Actions Whilst IS &amp; M have received a number of different opinions from different areas of AWB and an informal opinion from DFAT we still feel this issue is a grey area with no prescriptive answers. Based on the opinions we do have and the commercial circumstances surrounding this issue IS &amp; M recommend and seek approval for the following: &#8226; IS &amp; M is to repay debt as per method outlined in AWBs legal opinion (and requested by the Minister of Trade) directly to Alia Transport in Jordan in instalments. IS &amp; M will also look to obtain written agreement from IGB to the payment in the format agreed by legal however it is not guaranteed. &#8226; Managing Director only to convey our intentions to the Australian Government at the appropriate time prior to Shipment. The timing of such a disclosure is important and we would recommend that nothing be done until at least Letters of Credit are in place for these contracts. Given that this is unlikely to happen until after a war with Iraq it may allow us a further chance of renegotiation with a new regime. &#8226; IS &amp; M to finalise as soon as possible a written agreement with Tigris with regard to the settlement of their debt.' [Original emphasis omitted] The evidence before me establishes to the requisite prima facie standard that the price in contracts A1670 and A1680 was inflated to cover both the amount of the iron filings claim and the repayment by GBI of the debt which it owed to Tigris. A surcharge of US$8.375 pmt was added to each contract in respect of the Tigris debt, as shown by an email from Nigel Edmonds-Wilson to Scales and others at AWB dated 12 December 2002. The same email shows that in each contract the inland transportation fee was set at US$51.15 pmt. At the Commission, Mr Geary of AWB gave evidence that the prices in these two contracts were inflated to cover a component for the Tigris debt and a component for the US$2 million iron filings rebate. He also said that the United Nations was not advised at any stage that the prices for wheat in these two contracts had been inflated in this way so as to cover the Tigris debt and the iron filings claim. To adopt the words of Viscount Finlay in O'Rourke , the evidence gives ample 'colour to the charge' that the prices in these two contracts were falsely misrepresented. The evidence shows that the prices in the two wheat contracts were inflated as a means of extracting money from the United Nations' escrow account. Having regard to the terms of the memorandum of 7 February 2003, there are reasonable grounds for believing that, having extracted approximately US$2 million from the escrow account to meet the iron filings claim, AWB planned to pay that money in instalments to GBI via the mechanism of inland transportation fees. The material before me, including Whitwell's email of 7 November 2002 and his memorandum of 7 February 2003, indicates clearly that AWB knew that paying inland transportation fees to Alia was a means of making payments to the Iraqi Government. This plan was concealed from the United Nations. The planned payments of the iron filings claim were never carried into effect because the invasion of Iraq intervened. Scales gave evidence to the Commission that the iron filings money has never been paid and remains in AWBI's accounts. However, the fact that the payments were never made to the GBI will not prevent the application of the fraud exception so long as there is sufficient evidence that the communications were in furtherance of, or preparatory to, the commission of the fraud or impropriety in the broad sense described above: see Butler; and Clements at 562 [213]. In my view, the evidence establishes a more than adequate prima facie case that AWB knowingly and deliberately disguised the true nature of the prices in contracts A1670 and A1680. If it be relevant, I also consider that the evidence establishes the foregoing matters on the balance of probabilities and to a level of satisfaction commensurate with the seriousness of the allegation: see Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 362 per Dixon J. No question arises here of evidence which would not be admissible in a final hearing: cf Propend . AWB argued that there was no evidence that the transaction furthered any particular fraud, iniquity or illegality. It submitted that it is common ground that the United Nations' resolutions were not in terms incorporated into Australian law. AWB submitted that, consequently, the fraud exception is not available to take the documents out of the operation of the doctrine of legal professional privilege. This narrow approach is at odds with the authorities that stress the wide range of fraudulent or iniquitous activities that fall within the principle. I have inspected the six documents that were said to relate to the iron filings claim. My inspection of AWB's documents revealed a further four documents that fall within this category and are still the subject of a privilege claim. I am satisfied that these 10 documents are not privileged. The documents were, prima facie, brought into existence in furtherance of an improper and dishonest purpose, viz inflating the prices of contracts A1670 and A1680 so as to extract payments out of the United Nations' escrow account that would then be utilised, in part, to satisfy a compensation claim by GBI. Prima facie, the evidence establishes that the transaction was deliberately and dishonestly structured by AWB so as to misrepresent the true nature and purpose of the trucking fees and to work a trickery on the United Nations. It would be contrary to public policy for the privilege to enure in communications of this kind. The 10 documents in question are listed below in my conclusions. There is an alternative basis for rejecting AWB's claim for privilege over the 10 iron filings documents. AWB's disclosure of the memorandum of 7 February 2003 and its tender by the Commonwealth as an exhibit in these proceedings, without any objection or claim to confidentiality by AWB, effects a waiver over the subject matter of the legal advice set out in the memorandum. My inspection of the 10 documents relating to the iron filings claim confirms my view that those documents relate to the subjects and issues that are canvassed in the memorandum of 7 February 2003. If, contrary to my view, any privilege subsisted in any of the documents, it has been waived by AWB. When the Commonwealth tendered the unmasked version of the memorandum of 7 February 2003, I asked Mr Judd why AWB's production of that document did not waive any privilege that subsisted in documents relating to the iron filings claim. Mr Judd's response was that the Commonwealth did not put its case on that basis. I do not think that is entirely correct. In the particulars of its case, the Commonwealth contended that AWB's disclosure of the masked version of the memorandum of 7 February 2003 worked a waiver of any privilege in documents relating to Project Water and the Tigris transaction. The Commonwealth has never varied from the position that the iron filings claim was an integral part of the Tigris transaction. However, the Commonwealth did not in its closing address make any submission that privilege over the six documents had been waived by the production of the unmasked memorandum. To that extent, Mr Judd's response was correct. Despite these matters, I have concluded that the Court cannot ignore the effect of the evidence before it, especially as AWB is seeking a declaration that the 10 documents are privileged. CONCLUSIONS It is not feasible in these reasons for judgment, when so many documents are at issue, to set out separate reasons for the decision I have reached on each particular document. I have reached the conclusions set forth hereunder after inspecting all of the documents in AWB's revised list of privileged documents and by applying the legal principles and factual findings identified above. AWB has not made out its claim for privilege in respect of the following documents: 229, 245-247, 279, 280, 362B, 469A, 495, 542, 565, 586, 675, 784, 867, 872, 890AN, 1090, 1091, 1095, 1096, 1098, 1099, 1118 and 1262. These documents fall into the following categories : (a) documents for which there is no evidence of purpose to satisfy the dominant purpose test (documents 229, 469A, 542 and 565); (b) documents where the evidence does not satisfy the dominant purpose test, having regard to the nature and content of the document and the vague and formulaic evidence contained in the relevant segments of the affidavit evidence (documents 279, 280, 495, 675, 784, 867, 872, 890AN, 1095, 1096, 1098, 1099, 1118 and 1262); (c) a document that was provided to a third party and therefore was not a confidential communication for the dominant purpose of obtaining or giving legal advice (document 362B); (d) documents which are partly not proven and partly waived (documents 245-247, 586, 1090, 1091 which are discussed further below). If, contrary to my view, privilege does attach to any of these documents, there has been a waiver of privilege in respect of all of them, other than documents 362B, 784, 872 and 1118. The waived documents are included in the list at [237] below. In addition, there are 10 documents relating to the iron filings claims. They are as follows: 30, 31, 32, 32A, 33, 41, 594, 595, 595A and 596. Privilege does not attach to these documents as they were brought into existence in furtherance of a fraud or other impropriety. Alternatively, any privilege has been waived by AWB. These documents are included in the list at [237] below. AWB has waived any legal professional privilege that subsisted in the following documents: 12, 301-33, 41, 56, 77-79, 81-85, 100-106, 110-117, 120-124, 126, 127, 129-132, 136, 137, 139, 140, 161, 213, 229, 235, 240, 241, 245-247, 250, 252, 253, 257-259, 263, 265-268, 271, 279, 280, 283, 284, 290, 292, 294-301, 308-310, 313, 326, 327, 330-333, 335A-342, 344, 348, 353A, 355-357, 359, 361, 362A, 365, 375, 377-380, 385, 386, 394, 422, 423, 424, 425, 432, 443, 445-449, 455, 461, 463, 465, 469A, 486, 487, 495, 507, 508, 513, 523, 524, 533, 534, 541-544, 547, 548, 553-555, 557, 563, 565, 568-579, 582-590, 592, 594-596, 599, 601-603, 675, 681, 681A, 689A, 689B, 699-704D, 704J-704P, 704T, 704X, 704AA, 704FF, 704KK, 711-715, 721, 722, 725, 729-733, 736-739, 749, 753, 755-757, 762, 771, 788, 794, 798, 815, 817, 820, 823, 824, 837, 840, 847, 867, 890AA, 890AD, 890AE, 890AH, 890AI, 890AJ, 890AK, 890AM, 890AN, 890AP, 890AQ, 1005, 1006, 1009, 1011-1013, 1025, 1026, 1028-1030, 1032, 1033, 1051, 1056, 1059, 1070, 1088-1096, 1098, 1099, 1119- 1121, 1123, 1124, 1144-1152, 1161-1163, 1183-1187, 1221, 1222, 1262 and 1297. In broad terms, the documents over which privilege has been waived comprise documents falling within the following categories: documents which define the scope of AWB's internal review or which identify what investigations were carried out; summaries, chronologies and other documents which record or analyse the results of those investigations; witness statements and other notes or records of interviews of AWB personnel; records of meetings and periodical reports concerning the findings of the review; and documents seeking advice, or comprising or recording advice provided to AWB, as to whether AWB or any of its employees engaged in wrongdoing in connection with wheat sales to Iraq under the OFF Programme, including any wrongdoing in connection with the Tigris transaction. As I have explained, waiver does not turn on whether the documents attracted the description 'Project Rose' or 'Project Water'. On inspection, I determined that numerous documents marked 'Re: Project Rose' or the equivalent fall outside the scope of any waiver as they related to distinct matters about which AWB sought or obtained legal advice, such as the powers and jurisdiction of the PSI and IIC investigators, other US legal issues, the memorandum of understanding between the IIC and AWB, representation of AWB employees at IIC hearings, the powers of the Wheat Export Authority, and issues of directors' and officers' insurance and corporate governance. There are a number of documents where, on inspection, I have determined that the document is only capable of attracting privilege as to part (the balance of the claim for privilege not having been proved), but that such privilege has been waived. These documents require some further explanation: (a) Documents 245 and 246 are drafts of an information paper dated 13 August 2004. Document 247 substantially replicates the draft information paper in a power point presentation format. AWB claims privilege in two parts of each of these documents, as indicated on the face of the documents. In substance, AWB contended that these parts attracted privilege because they recorded legal advice. On inspection I concluded that the claim is not established in respect of the first part of the documents. I have determined that the second part claimed attracts privilege but AWB has waived privilege in respect of that second part. (b) Document 586 is a table of various legal advices in the possession of Blakes. AWB contended that the table recorded legal advice. On inspection I concluded that this claim is not sustainable , save for the entries listed at 23, 24 and 25 of the table which disclose the substance of legal advice given by Mr Tracey QC. I have determined that AWB has waived privilege in respect of entries 23, 24 and 25 of the table. (c) Documents 1090 and 1091 are, respectively, the minutes of AWB and AWBI board meetings dated 22 February 2005. AWB claims privilege in two parts of each of these documents, as indicated on the face of the documents. It contended that these parts recorded legal advice. As to the first part claimed, this is not borne out by my inspection. I have determined that the second part claimed attracts privilege but AWB has waived privilege in respect of that second part. There are also a number of documents which I have determined to be privileged only as to part of the claim made by AWB. After inspecting the documents and applying the principles I have discussed, I have determined that certain parts of the documents are privileged, while privilege in another part or parts of the documents has not been proved or it has been waived. It is necessary to deal with each of these documents: (a) Document 138 contains three pages of handwritten file notes. Privilege has not been established in respect of the first page of the document. If (contrary to my view) privilege is attracted, it has been waived. Privilege is established in respect of the second page of the document. Privilege has not been established in respect of the third page of the document; or if privilege is attracted, contrary to my view, it has been waived. (b) Document 251 is a document consisting of a number of entries in a spreadsheet. AWB claims privilege in certain parts of the document, as indicated on the face of the document. AWB has waived privilege in respect of the parts claimed on pages 367, 368, 380, 390, and the first of the two parts claimed on each of pages 388 and 395. The page numbering refers to the system that AWB has adopted for its document control purposes. Otherwise, the document attracts privilege to the extent claimed. (c) Document 376 is a handwritten file note headed 'Iraq Report for JIS'. I have determined that the document attracts privilege, but that AWB has waived privilege in respect of the part of the document that relates to the Tigris transaction, namely the second entry commencing with the words 'completion of Iraq mkt. access arrangements' and concluding with the words 'confirm there is compliance'. (d) Documents 503, 520, 522, 526, 527 and 965 contain various drafts of a briefing paper initially prepared by ABL. I have determined that each of the documents attracts privilege, but that AWB has waived privilege in respect of the part of each document under the headings 'Legal Review' and 'Key Messages'. (e) Document 516 is another draft of the briefing paper referred to in the preceding subparagraph. I have determined that the document attracts privilege, but that AWB has waived privilege in respect of the part of the document under the heading 'Legal Review'. (f) Document 691 is a record of a meeting attended by various internal AWB employees and external lawyers. AWB said that the document attracted privilege in part. Dr Fuller gave evidence that it recorded legal advice of Leonie Thompson. I have determined that the passage on page 028 of the document opposite the entry 'Leonie T' is privileged. As to the remainder of the document, it does not record any legal advice and is not privileged. (g) Document 696 is a record of a meeting attended by various internal AWB employees and external lawyers. AWB claimed that the document was part privileged, and relied on Dr Fuller's evidence that it recorded legal advice given by Leon Zwier. I have determined that the passage on page 037 of the document opposite the heading 'Leon Zwier' (to the balance of the page) is privileged. Privilege has not been established in respect of the remainder of the document. If any privilege attached to the remainder, it has been waived. (h) Document 704S is a record of various matters discussed between AWB's external and internal lawyers. I have determined that AWB has waived privilege over the six lines commencing with the entry which includes the words 'iron filings case'. The balance of the document is privileged. (i) Document 704II is a handwritten record of various conversations on 20 and 28 September 2004. On the face of the document, it appears that a claim for privilege is made only over the part of the document which is dated 28 September 2004. Privilege has been established over the entry dated 28 September 2004. However the evidence of Ms Peavey in relation to document 704II addresses the entry of 20 September 2004. If privilege is claimed over the part of the document which is dated 20 September 2004, it has not been established. (j) Document 1097 is the minutes of a meeting of the AWB and AWBI joint board committee. There are two parts of the document over which a claim for privilege is made on the ground that they record legal advice. On inspection I determined that the part of the document consisting of the first bullet point under the heading 'Project Rose' is privileged. However, privilege has not been established over the third bullet point. If privilege is attracted over that part of the document, it has been waived. Document 1297 is a redacted copy of an email from Cooper to Lindberg and Scales, copied to Quennell, dated 16 November 2004. It appears that the redactions mask those parts of the document over which a claim for privilege is made. Prima facie, the document appears to be within the scope of the waiver I have identified and applied in these reasons for judgment. However, I propose to invite further submissions from the parties as to whether document 1297 is in contest and, if so, I will direct that an unredacted version of the document be filed with the Court for its inspection. As for the remaining documents, AWB has in some instances claimed privilege over the entire document and in other instances it has only claimed privilege over a designated part or parts of the document. AWB has established that legal professional privilege attaches to the following documents to the extent claimed by it: 20, 21, 55, 89-98, 107, 108, 119, 133, 135, 143-146, 150-152, 154-160, 162-190, 194, 196, 197, 199-201, 204-211A, 215, 217-222, 224-228, 230-234, 237-239, 254-256, 260-262, 264, 269, 270, 273-278, 281, 282, 285, 286, 288, 293, 302-306, 311, 315-324, 334, 343, 345-347, 349-353, 354, 358, 362, 368, 374, 381, 382, 384, 387, 388-393, 395, 398-408, 410, 412-414, 416-421, 423A, 426-428, 430, 431, 433-442, 444, 450-454, 456, 457, 459, 460, 462, 464, 465A, 467, 468, 470-473, 475-485, 488, 490-494, 496-502, 504-506, 509, 510, 514, 515, 517-519, 521, 525, 529, 530, 536-540, 549-552, 556, 558-562, 564, 566, 567, 581, 591, 593, 600, 605, 671, 672, 673A, 679, 694, 696A, 704E 704I, 704Q, 704R, 704U-704W, 704Y, 704Z, 704BB-704EE, 704GG, 704HH, 704JJ, 706-710, 724, 727, 740-745, 747, 748, 751, 752, 754, 758-761, 763-766, 768-770, 772, 773, 775, 777, 779-781, 785, 787, 790, 792, 797, 799-802A, 804, 806-814, 816, 818, 819, 821, 822, 826-831, 835, 849-852, 856, 857, 860, 861, 863, 865, 866, 868-870, 873, 876, 877, 879, 881-883, 885, 887-889, 890AB, 890AC, 890AG, 890AIA, 890AL, 890AR-AZ, 890BA-890BG, 937AJ, 937AP, 942, 947, 948, 950-953, 956-964, 966, 970-992, 994, 995, 997, 998, 1000-1004, 1071, 1073-1081, 1082A, 1083, 1086, 1087, 1112-1113A, 1114-1117, 1118A, 1152A, 1155, 1158-1160, 1190, 1195, 1196, 1200, 1206, 1213-1215, 1218, 1225, 1226, 1229, 1231, 1232, 1234, 1237, 1239, 1240, 1243, 1246-1250, 1252, 1255, 1256, 1260, 1261, 1293 and 1299-1301. COPY DOCUMENTS AWB has filed a list of duplicate privileged documents. The list is Exhibit JM5 to the affidavit of John Mitchell sworn 28 July 2002. Each document in the list is a duplicate of an identified document in AWB's list of privileged documents. The duplicates fill 17 lever arch folders. AWB has sought a declaration that the documents in this list are, or record, confidential communications that are protected from production to the Commissioner by legal professional privilege. At the hearing, neither AWB nor the Commonwealth directed any substantive submissions to the status of these duplicate documents. In its written submissions, AWB referred to the principles enunciated in Propend as to the circumstances in which a copy of an unprivileged document can itself attract legal professional privilege. In those written submissions, AWB contended that the qualification which Brennan CJ expressed in Propend at 512 does not represent the law. The Chief Justice's qualification was that if the original unprivileged document is not in existence or its location is not disclosed or it is not produced, and if no unprivileged copy or other admissible evidence is available to prove the contents of the original document, then privilege cannot be maintained over the copy. However, AWB did not make any submissions as to how, or why, this qualification might be relevant to its claims. AWB adopted the position that the status of the duplicate documents depends on my decision as to the status of the corresponding original document. The Commonwealth did not make any submission to the contrary at the hearing, although its written submissions contended that AWB had failed to identify the purpose for which particular duplicates were created, or to establish that they were kept confidential. It would seem a harsh result if AWB were to lose the benefit of privilege in original documents simply because it has not explained or is unable to explain the circumstances in which copies were made. In large organisations and within law firms, it is hardly unexpected that multiple copies of privileged documents will be brought into existence and that, long after the event, it may be difficult to adduce evidence as to the circumstances in which the copies were made. The submissions of the parties were so cursory that I did not gain any meaningful assistance from them. However, I have reached the following conclusions. Where I have held that specified original documents do not attract legal professional privilege, no case has been made out that duplicates of those documents are entitled to privilege. Where I have held that specified original documents attract legal professional privilege, I have concluded that privilege attaches to the duplicates. The duplicates come from the custody of AWB, and there is nothing to suggest that the duplicates were dealt with, or communicated, in ways that would deny the privilege claim. Furthermore, the material before me does not identify any specific grounds for concluding that the duplicates do not attract privilege. A number of documents in AWB's revised list of privileged documents are said to be duplicates of other documents in the list. There is no evidence as to some of those documents (documents 291, 307 and 580) and others have been removed (documents 26 and 1031). Consequently, I have not made any findings about those documents; it is unclear whether they remain in contest. It is necessary to make specific reference to a number of other duplicate documents in the list: (a) Document 582 is a copy of document 140. I have determined that AWB has waived any privilege attaching to the documents. (b) Document 998 is a copy of document 995 and document 1001 is a copy of part of document 1000. I have determined that the originals are privileged. For the reasons given at [247] above, privilege attaches to the copy documents. (c) Document 1006 is said by Chesterman to be a copy of document 1005. My inspection of the documents has revealed that this is not the case. There is therefore no evidence capable of supporting the claim for privilege in respect of document 1006. However, even if there were evidence that document 1006 attracted privilege, I am satisfied that AWB has waived the privilege. RELIEF I have determined that specified documents are not the subject of legal professional privilege and that other documents attract legal professional privilege. The Court has power to make declarations to this effect. I propose to give AWB and the Commonwealth an opportunity to make submissions as to the form of any declarations that should be made to give effect to these reasons for judgment. AWB's second further amended application also sought declarations relating to the construction and validity of the Amending Act. In addition, AWB sought a declaration that the exercise of powers by the Commissioner under s 6AA(2) of the RCA, while these proceedings are pending before this Court, would constitute a contempt of Court, and injunctions restraining the Commissioner from making a decision under s 6AA(2) of the RCA. No live issues arise concerning these claims for relief: see AWB Ltd v Honourable Terence Rhoderic Hudson Cole (No 2) [2006] FCA 913. Neither AWB nor the Commonwealth put any submissions to me, whether orally or in writing, concerning these claims for relief. It is unnecessary to address them further. Accordingly, the only orders I propose to make at this stage are as follows: (1) Within 3 business days AWB and the Commonwealth file an agreed minute of orders that give effect to these reasons for judgment. If AWB and the Commonwealth are unable to agree upon appropriate orders, within 3 business days AWB and the Commonwealth shall each file and serve a minute of the orders that it contends are necessary and appropriate to give effect to these reasons for judgment. (2) The proceeding be adjourned to Monday 25 September 2006 at 10.15am for any argument as to the orders. I certify that the preceding two hundred and fifty-one (251) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 18 September 2006 Counsel for the Applicant: J Judd QC, P Corbett and Dr S McNicol Solicitor for the Applicant: Arnold Bloch Leibler Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: I Harrison SC, R Newlinds SC and NJ Beaumont Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 7, 9, 10, 11 August 2006 Date of Judgment: 18 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1234.html