Collie and Australian Securities and Investments Commission [1999] AATA 669 (10 September 1999)

Last Updated: 13 September 1999

DECISION AND REASONS FOR DECISION [1999] AATA 669

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1997/1255

GENERAL ADMINISTRATIVE DIVISION )

Re IAN DAVID COLLIE Applicant

And AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date 10 September 1999

Place Brisbane

Decision The Tribunal decides that: (a) the decision under review is set aside and the matter remitted to the respondent to reconsider the grant of access to the documents in the light of the Tribunal's reasons for decision; (b) in so far as the applicant seeks review of the charges notified by the respondent the respondent's decision is affirmed; and (c) liberty to apply is reserved to both parties.

Decision No 669/1999 (Sgd) K L Beddoe

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION : Exemption - Legal Professional Privilege - documents of in house lawyers - administrative documents

Freedom of Information Act 1982

Evidence Act 1995

Administrative Decisions (Judicial Review) Act 1977

Grant v Downs (1976) 136 CLR 764 11 ALR 577

Parry Jones v Law Society 1969 1 Ch. 1

Baker v Campbell at 49 ALR 414

Australian Federal Police v Propend Finance (1997) 141 ALR 545

Somerville and Ors v Australian Securities Commission (1995) 131 ALR 517

Neate v Australian Securities Commission (1995) 1132 ALR 413

Waterford v Commonwealth of Australia (1987) 163 CLR 54, 71 ALR 673

Re Proudfoot and HREOC (1992) 28 ALD 734

Attorney-General (NT) v Kearney (1985) 158 CLR 500; 61 ALR 55

Trade Practices Commission v Sterling (1979) 2 ATPR 18, 302

Neate v Australian Securities Commission (1995) 132 ALR 413

REASONS FOR DECISION

10 September 1999 Mr K L Beddoe (Senior Member)

1. The applicant applied under the Freedom of Information Act 1982 ("the Act") for access to documents held by the respondent Commission ("ASIC"). The application was specific as to the description of documents to which access was sought and is set out in full:

"Documents reflecting or relating to or otherwise taken into account in connection with the decision of Brendan Charles Behan, a delegate of the Australian Securities Commission, to issue a Notice to Show Cause to the Applicant dated 20 March 1997 pursuant to Section 600(2) of the Corporations Law."

2. In these reasons the use of the term "respondent" refers to the respondent and its predecessor (Australian Securities Commission).

3. On 20 June 1997 the respondent wrote to the applicant stating that 50 documents had been identified as falling within the scope of the application (T8). A Schedule describing each document was provided and a decision to grant access to documents 1 to 49 was notified. Document 50 was not released, exemption being claimed under s 42 of the Act supported by a claim that the document would be privileged from production in legal proceedings on the grounds of legal professional privilege. The applicant did not seek access to the documents.

4. By application dated 13 October 1997 the applicant made a further application under the Act for access to the documents specified in a schedule which was in the following terms:

"1. Documents at any time provided to ASC delegate Brendan Charles Behan for the purpose of, relating to and/or reflected in his decision to issue a Notice to Show Cause to the Applicant dated 24 September 1997.

2. Documents provided to ASC officer Justin O'Halloran on or after 25 April 1997 for the purpose of, relating to or reflecting any action by him in connection with the Notice to Show Cause referred to in paragraph 1 above and/or the Notice to Show Cause issued to the Applicant dated 20 March 1997.

3. Documents provided to any delegate of the ASC appointed in relation to any hearing pursuant to Section 600 of the Corporations Law in respect of the notice referred to in paragraph 1 above including for the purposes of the directions hearing held on 9 October 1997.

4. Documents evidencing or otherwise relating to ASC delegate Behan's withdrawal from conducting the hearing in relation to the second notice referred to in paragraph 2 above including in relation to the appointment of any delegate to conduct the hearing in relation to the notice referred to in paragraph 1 above.

5. Documents related to, reflected in and/or otherwise relied on by the ASC or any of its officers in formulating Schedule 5 of the Areas of Concern in each of the Notices to Show Cause dated 20 March 1997 and 24 September 1997.

6. Documents provided by the ASC on or after 25 April 1997 for the purpose of or in relation to any of the affidavits and unsworn statement referred to in the ASC's letter to Cleary Hoare dated 6 August 1997 in respect of the Applicant."

5. A dispute developed between the parties as to the payment of fees under the Act and the respondent did not notify a decision on the second application as such. It did decide to impose a charge of $550 under s 29 of the Act in respect of the processing of the application and the applicant was notified accordingly by a letter dated 1 December 1997. The applicant was also notified that access to the documents would only be provided upon receipt of the total charge due.

6. On 15 December 1997 the applicant applied to this Tribunal for review of:

(a) The deemed refusal of access to the documents coming within the scope of the request; and

(b) The decision to impose a charge and/or the amount of the charge.

7. At the hearing the applicant conducted his own case and Mr Coburn appeared for the Commission. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") were before the Tribunal and further documents were tendered and marked as exhibits.

8. Exhibit 1 is an affidavit sworn by Sean James Riordan on 27 April 1998. The affidavit exhibits a schedule of documents numbered 1 to 49 and in respect of which the respondent claims exemption from access under s 42 of the Act. That section reads:

"42. (1) A document is an exempt document if it is of such a nature that it

would be privileged from production in legal proceedings on the ground of

legal professional privilege.

(2) A document of the kind referred to in subsection 9 (1) is not an exempt

document by virtue of subsection (1) of this section by reason only of the

inclusion in the document of matter that is used or to be used for the purpose

of the making of decisions or recommendations referred to in subsection 9 (1)."

9. Exhibit 2 is a bundle of copy documents being copies of the documents described in the Schedule to Exhibit 1 together with two copy documents not discovered in the affidavits. Exhibit 2 is the subject of an order under s 35 of the AAT Act.

10. Exhibit 3 is a copy of a further affidavit sworn by Mr Riordan on 10 June 1998. That affidavit referred to various documents to which access had not been given because they were thought to be outside the application. It also referred to the 49 documents which were then the subject of a claim for exemption under s 42 of the Act and the balance of 630 documents previously disclosed to the applicant's solicitors and for which exemption is claimed under s 43 of the Act.

11. Of these documents only 51 have now been exhibited and are included in Exhibit 2. The Schedule of 630 documents has been lodged in the Tribunal but has not been marked as an exhibit in these proceedings.

12. Exhibit A is an affidavit by the applicant exhibiting a chronology of principal dates and certain related documents. The exhibit establishes the circumstances in which the freedom of information application is made. While it is clear that motive for making an application under the Act is not relevant (s 11(2)) it is relevant to establish the circumstances in which the claims for exemption are made. This in turn may be relevant in the balancing of the public interest where relevant and the operation of ss 9(1) and 43(2) in particular.

13. Following the issue of notices to show cause and a hearing before the respondent's delegate the Commission prohibited the applicant (and C H Collie) from acting as directors of companies. Proceedings ensued in this Tribunal which eventually set aside the Commission's prohibition order and remitted the matter for reconsideration by another delegate. The counsel and solicitor acting for the Commission in those proceedings were Justin O'Halloran and Brendan Behan respectively.

14. The Commission's response to the Tribunal's decision was to withdraw the original show cause notices.

15. By a notice dated 20 March 1997 Brendan Charles Behan as delegate of the respondent issued a notice to the applicant to show cause why the Commission should not serve a notice on the applicant in accordance with s 600(3) of the Corporations Law prohibiting the applicant from acting as a director etcetera of companies.

16. In June 1997 Mr Behan indicated that he intended to conduct the proceeding at the hearing notwithstanding he was the person who issued the show cause notice.

17. On 5 July 1997 Mr O'Halloran sent an E-mail message to Diane Binstead (a solicitor in the employ of the respondent) indicating that he was reviewing "a basic collection of Collie documents" and suggesting that the fact of Behan being the instructing solicitor before the Tribunal should be drawn to the attention of the "lawyer" for Collie. Somewhat surprisingly the message asserted that Behan had no actual part in the carriage of the case in the Tribunal and no knowledge of the matter from involvement in that hearing.

18. Even more surprising is an E-mail message dated 7 July 1997 from Behan to Binstead countermanding O'Halloran's suggestion.

19. An amended show cause notice was issued dated 24 September 1997 and the applicant was advised that a different delegate of the Commission would conduct the hearing for the Commission. That delegate (Peter Stepek) subsequently conducted the hearing and a decision was made.

20. In October 1997 the applicant applied to the Federal Court seeking an injunction against the respondent proceeding with the s 600 hearing. The injunction was not granted.

21. The applicant's case was centred around his allegation that the respondent had not discovered all documents relevant to the request. This was eventually answered in part by Mr Riordan's affidavit of 24 June 1998 (Exhibit 4). On 2 September 1998 the Tribunal made a direction for disclosure of all documents not then disclosed.

22. There has been no response to that direction and no application to the Tribunal in respect to the direction. I propose to proceed on the basis that there are no further relevant documents.

23. I have also proceeded on the basis that the respondent and its delegate adopt different roles in a s 600 proceeding in that the Commission's officers adopt the role of amicus curiae in presentation of evidentiary material to the delegate.

24. The essence of the respondent's case is that the relevant documents to which access has been refused are documents to which legal professional privilege applies and which are therefore exempt within the terms of s 42 of the Act.

25. Section 118 of the Evidence Act 1995 provides that evidence is not to be adduced if, on objection by a client, the Court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer;

(b) a confidential communication made between two or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer; for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client;

"Lawyer" is defined to include an employee or agent of a lawyer.

"Client" is defined to include an employer of a lawyer if the employer is the Commonwealth or a body established by a law of the Commonwealth (Evidence Act 1995 - s 117)).

"Confidential document" and "confidential communication" are also defined in s 117 to include documents and communications where there was an express or implied obligation not to disclose its contents. Sections 121 to 126 set out circumstances where the privilege will be lost. Those circumstances do not include where disclosure is made in certain circumstances including under compulsion of law (s 122(2)).

26. The common law principle euphemistically described as legal professional privilege was explained by the High Court in Grant v Downs (1976) 135 CLR 764 11 ALR 577. In essence the privilege is a rule of evidence which confers a right to withhold from a court material which would otherwise be admissible in evidence (Parry Jones v Law Society 1969 1 Ch. 1 at 9). It is therefore a rule about compellibility of a witness rather than admissibility of evidence (per Wilson J in Baker v Campbell at 49 ALR 414).

27. There are of course a number of authorities dealing with the privilege in the context of administrative proceedings as distinct from judicial proceedings (eg Baker v Campbell (1983) 49 ALR 385 which overruled the earlier decision in O'Reilly v State Bank of Victoria (1982) 44 ALR 27).

28. In Baker v Campbell the issue was whether documents which would be privileged from production in legal proceedings could be the subject of a search warrant. In Australian Federal Police v Propend Finance (1997) 141 ALR 545 that issue was taken further. In that case the High Court had to consider whether copy documents, the originals of which were not privileged, could be subject to the privilege. The Court held that copy documents provided solely for the purpose of obtaining legal advice or in legal proceedings could be subject of a claim for privilege.

29. In Propend the issue involved documents seized from the office of a solicitor who was also a director of the company. Brennan CJ considered proceedings outside judicial and quasi-judicial proceedings with particular reference to search warrants. His Honour discussed an exception to the operation of the privilege in these words at ALR 551:

"I would state the qualification in this way: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. The loss of privilege can be avoided by the production of a copy of the original (which might be produced by copying the privileged copy) the accuracy of which is verified by a person having knowledge of the contents of the original. So long as a copy of the unprivileged original (with verification if necessary) or other secondary evidence of its contents is available to be tendered to prove the contents of the original, the privilege attaching to any copy of the original can and should be maintained. Otherwise, I would hold the privilege of the privileged copy to be lost."

30. Dawson J drew the distinction on more pragmatic grounds and applied the test enunciated by Jacobs J in Grant v Downs (135 CLR at 692) "does the purpose of supplying the material to the legal adviser account for the existence of the material". Dawson J had earlier made it clear that the privilege applies to confidential communications and not to documents per se. Contrary to the decision of the majority Dawson J concluded that a copy of a document which does not attract legal professional privilege is in no different position to the original.

31. Toohey J was of a similar, but not the same view as Dawson J. His Honour also highlighted that the privilege applies to communications in confidence, not documents.

32. The Court decided, in the words of Gaudron J (141 ALR 577):

". . . a copy document which has been brought into existence by a lawyer solely for the purpose of obtaining counsel's advice, solely for inclusion in his or her brief on hearing, or solely for the purpose of advising his or her client is the subject of legal professional privilege."

33. Grant v Downs is authority for the proposition that there are two branches to the privilege which is the client's privilege, and which protects from disclosure any oral or written communication which has been created:

(a) For the sole purpose of obtaining and giving legal advice; or

(b) For the sole purpose of using it in litigation including anticipated litigation.

The decision of the majority in Grant v Downs did not follow the dominant purpose rule as explained in the judgment of Barwick CJ preferring the more stringent sole purpose test.

34. The decision of the Federal Court is Somerville and Ors v Australian Securities Commission (1995) 131 ALR 517, is authority of the proposition that documents brought into existence by the Commission for the purpose of considering the exercise of the Commission's powers under the Corporations Law cannot be said to have been brought into existence solely for the purpose of obtaining and giving legal advice for use in litigation or anticipated litigation. The documents had also been brought into existence for the purpose of performing the Commission's statutory functions.

35. In Neate v Australian Securities Commission (1995) 132 ALR 413 it was held by Drummond J that a decision to issue a notice under s 600(2) of the Corporations Law was not a reviewable decision for the purposes of the Administrative Decisions (Judicial Review) Act 1977. His Honour said that the determinative stage was only reached when the Commission decided whether to issue a prohibition order under s 600(3) (132 ALR 416).

36. In Waterford v Commonwealth of Australia (1987) 163 CLR 54, 71 ALR 673 the High Court considered whether documents held by the Department of the Treasury and containing legal advice provided by the Attorney-General's Department were privileged. In the course of their joint judgment Mason and Wilson JJ said at page 62 (CLR) 677 (ALR):

"To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment."

Their Honours went on to reject submissions based on a consideration of Crown privilege in conjunction with legal professional privilege and concluded that legal advice tendered in the course of administrative decision making will be subject to the privilege if the sole purpose test, as enunciated in Grant v Downs, is satisfied.

37. The situation left open by the decision in Waterford is that of the legal adviser employed by the agency ie the legal adviser is an employee of the client as in the present case.

38. Dawson J highlighted the problem at 96-7 (CLR) 703-4 (ALR).

39. In the light of the decision in Waterford I am satisfied that confidential legal advice which satisfies the test in Grant v Downs and which is given by and in the professional capacity by an employed lawyer to the employer agency could be privileged from production in legal proceedings. The advice must be given on a professional basis, that of lawyer/client, and must be the lawyer's independent advice and not advice given by direction of the employer which impacts on the independence of the lawyer as explained by the President in Re Proudfoot and HREOC (1992) 28 ALD 734. As was pointed out in Re Proudfoot it does not follow that advice given in the course of administrative decision making by a lawyer is thereby privileged. At all times the ultimate test which must be satisfied is that enunciated by the High Court in Grant v Downs. See also Attorney-General (NT) v Kearney (1985) 158 CLR 500; 61 ALR 55, where confidential communications between public servants and Government legal officers in connection with the making of regulations were held not to be privileged on public interest grounds.

40. In Trade Practices Commission v Sterling (1979) 2 ATPR 18,302 the Federal Court had to consider how the privilege applied on inspection of documents in the custody or control of the Trade Practices Commission. In the course of his judgment Lockhart J set out seven categories of documents as follows - (I have excluded his Honour's citations):

"Legal professional privilege extends to various classes of documents including the following:

(a) any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them.

(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used.

(c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance.

(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf.

(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation Is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.

(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice of enabling him to prosecute or defend an action.

(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.

41. The respondent relies on the decision in Waterford as authority for the proposition that the privilege as found in Grant v Downs applies to lawyers employed by Government, ie the privilege is not confined to documents passing between a client department and the Attorney-General's Department.

42. The respondent also relies on the analysis by the Tribunal in Re Proudfoot.

43. The difficulty in the respondent's submission is its reliance on the decision in Baker v Campbell as being applicable to the documents relating to the s 600 proceedings. It submits that the proceedings are of a quasi-judicial nature. I do not agree for the reasons set out by the Tribunal in Re Delonga and Australian Securities Commission (1994) 15 ACSR 450. In my view the Commission is performing an administrative function when acting pursuant to s 600 of the Corporations Law. Although not directly on point the judgment of Drummond J in Neate v Australian Securities Commission (1995) 132 ALR 413, also leads me to the same conclusion. It follows, in my view, that although a s 600 proceeding requires that the person be given notice, and be given the opportunity to be heard before a prohibition notice is served it does not follow that the proceeding is other than an administrative proceeding.

44. So instructed I turn to consider the individual documents included in Exhibit 2 and described in Mr Riordan's affidavit of 27 April 1998 as follows:

Description Date

1. Letter ASC to C White signed by D Binstead, lawyer, titled 'Monitus P/l (in liquidation) - S533 report - Ian David Stafford Collie and Caroline Helen Collie' seeking further information to answer ASC Counsel requisitions (annotated by Ernst & Young staff). 6/2/96

2. Letter ASC to C White signed by D Binstead, lawyer, titled 'Monitus P/l (in liquidation) - S533 report - Ian David Stafford Collie and Caroline Helen Collie' making arrangements for C Wight's attendance as a witness at an AAT review of an ASC decision (annotated by Ernst & Young staff) 21/12/95

3. Letter ASC to J Adams signed by D Binstead, lawyer, titled 'IDS and CH Collie and the ASC: AAT Ref Q95/732; QF95/734' making arrangements for J Adams' attendance as a witness at an AAT review of an ASC decision 18/2/96

4. Letter ASC to J Adams signed by S Yeoland, Administrative Law Program, titled 'IDS and CH Collie and the ASC: AAT Ref Q95/732; QF95/734 making arrangements for J Adams' attendance as a witness at an AAT review of an ASC decision 16/2/96

5. Fax ASC to J Adams signed by Leng Phang, solicitor, titled 'Captain Starlights P/l (in liqudiation) - S533 report - Ian David Stafford Collie and Caroline Helen Collie' seeking further information to answer ASC Counsel requisitions (annotated by BDO Nelson staff). 9/2/96

6. Fax ASC to J Adams signed by Leng Phang, solicitor, titled 'Captain Starlights P/l (in liquidation) - S533 report - Ian David Stafford Collie and Caroline Helen Collie' making arrangements to obtain further information and for J Adams' attendance as a witness regarding an AAT hearing. 7/2/96

7. Fax ASC to J Adams signed by Leng Phang, Solicitor, enclosing Letter ASC to J Adams signed by D Binstead, Lawyer, titled 'Captain Starlights P/l (in liquidation) - S533 report - Ian David Stafford Collie and Caroline Helen Collie' making arrangements for J Adams' attendance as a witness regarding an AAT hearing. 23/1/96

8. Fax from D Binstead, ASC lawyer, to J O'Halloran, ASC Counsel, enclosing Cleary Hoare letter 24/4/97 and making arrangements to discuss contents 29/4/97

9. Fax from D Binstead, ASC lawyer, to J O'Halloran, ASC Counsel, enclosing copies of correspondence between solicitors for IDS and CH Collie from 10/5/96 to present in respect of the hearing following issuing a notice to show cause dated 27/2/92. 28/4/97

10. Bundle of draft letters not signed addressed to Cleary Hoare titled 'IDS Collie - s600 of the Corporations Law' prepared in the name of D Binstead, ASC lawyer 6/6/97 18/9/97 14/10/97

11. ASC Memo D Binstead, ASC lawyer, to J O'Halloran, ASC Counsel titled "IDS & CH Collie - s600 hearing - preliminary conference' 18/6/97

12. Draft Memo of Directions made at preliminary hearing for IDS & CH Collie 17./6/97

13. Witness Statement not signed of Peter Anderson in the matter of IDS & CH Collie and s 600 of the Corporations Law 4/8/97

14. Document titled Aberford.xls provided to J O'Halloran, ASC Counsel comprising corporate information for 139 companies of which Mr or Mrs Collie appear to have been a director (A4 format) Not dated

15. Document titled Collie 02.xls provided to J O'Halloran, ASC Counsel, comprising corporate information for 141 companies of which Mr or Mrs Collie appear to have been a director Not dated

16. Draft Notice to Show Cause re I D S Collie not signed July 1996

17. Fax D Binstead, ASC Lawyer, to J O'Halloran, ASC Counsel enclosing schedule setting out corporate information for companies of which Mr or Mrs Collie appear to have been a director 15/7/96

18. Draft Notice to Show Cause re I D S Collie not signed (annotated by ASC Counsel) 5/7/96

19. Draft areas of concern annexure to Notice to Show Cause re I D S Collie provided to ASC Counsel Not dated

20. Email J O'Halloran, ASC Counsel, to C Dalton and Di  Binstead, ASC lawyer, enclosing memo suggested changes to draft notices to show cause 16/7/96

21. Memo J O'Halloran, ASC Counsel, to C Dalton and Di Binstead, ASC lawyer, titled 'Draft notices to show cause - CH Collie & IDS Collie' 16/7/96

22. Draft Notice to Show Cause re I D S Collie containing changes suggested by J O'Halloran, ASC Counsel, 5/7/96

23. Draft Notice to Show Cause re C H Collie containing changes suggested by J O'Halloran, ASC Counsel 5/7/96

24. Document titled Aberford.xls provided to J O'Halloran, ASC Counsel, comprising corporate information for 139 companies of which Mr or Mrs Collie appear to have been a director (A3 format) Not dated

25. Email Justin O'Halloran, ASC Counsel, to Diane Binstead, ASC Lawyer, titled 'Collie' giving advice on matters raised in a letter of Cleary Hoare dated 16.09.97, and enclosing text of earlier email from Diane Binstead, ASC Lawyer to Justin O'Halloran, ASC Counsel, seeking advice 18.09.97

26. ASC Memo Brendan Behan to Barrie Adams 18.09.97 titled Cleary Hoare - IDS & CH Collie (Part only relevant) 18.09.97

27. Facsimile Ernst & Young to ASC, attention Di Binstead, ASC Lawyer, titled 'Monitus Pty Ltd' enclosing draft Affidavit in the matter of IDS Collie, CH Collie and s 600 of the Corporations Law (annotated) 30.07.97

28. Letter ASC to Graham Clark signed by Di Binstead, Lawyer, titled '(Collian Services P/l (in liquidation) - s600(3)9b) of the Corporations Law' seeking further information for inclusion in an affidavit to be given by Graham Clark 31.07.97

29. Letter ASC to C S Wight signed by Di Binstead, Lawyer, titled 'Monitus P/l (in liquidation) - s600 of the Corporations Law' making arrangements for an affidavit to be given by C Wight 24.07.97

30. Letter ASC to C S Wight signed by Di Binstead, Lawyer, titled 'Monitus P/l (in liquidation)' seeking further information for an affidavit to be given by C Wight 22.07.97

31. Letter ASC to Andrew Birch signed by Di Binstead, Lawyer, titled 'Nawrik P/l (in liquidation)' making arrangements for an affidavit to be given by A Birch 18.07.97

32. ASC facsimile from Diane Binstead, Lawyer, to C S Wight, seeking further information for an affidavit to be given by C Wight 23.07.97

33. ASC facsimile from Diane Binstead, Lawyer, to Andrew Birch, seeking further information for an affidavit to be given by A Birch 17.07.97

34. Letter ASC to Andrew Birch signed by Di Binstread, Lawyer, titled "Nawrik P/l (in liquidation)' seeking further information for an affidavit to be given by A Birch 16.07.97

35. ASC letter to John Adams signed by Di Binstead, Lawyer, titled 'Starlight Restaurants P/l - S600 of the Corporations Law' seeking further information for an affidavit to be given by J Adams 14.07.97

36. Letter ASC to Graham Clark signed by Di Binstead, Lawyer, titled "Collian Services P/l - S600 of the Corporations Law seeking further information for an affidavit to be given by G Clark 04.07.97

37. ASC facsimile from Diane Binstead to Ernst & Young enclosing draft Affidavit in the matter of S600 of the Corporations Law and IDS Collie and CH Collie to be given by C Wight 31.07.97

38. Letter ASC to Graham Clark signed by Di Binstead, Lawyer, titled 'Collian Services P/l' seeking further information for an affidavit to be given by G Clark 30.06.97

39. Letter ASC to John Adams signed by Di Binstead, Lawyer, titled 'Starlight Restaurants P/l - S600 of the Corporations Law' making arrangements for an affidavit to be given by J Adams 26.06.97

40. ASC Memo D Binstead, ASC lawyer, to J O'Halloran, ASC Counsel, titled 'IDS & CH Collie - S600 hearing - preliminary conference' 18.06.97

41. ASC facsimile from Diane Binstead, ASC Lawyer, to Justin O'Halloran, ASC Counsel, enclosing ASC memorandum from Diane Binstead, ASC Lawyer, to Justin O'Halloran, ASC Counsel, titled 'IDS Collie - s600 Corporations Law' 06.06.97

42. Email from Diane Binstead, ASC Lawyer, to Andrew Freadman, ASC officer, and Justin O'Halloran, ASC Counsel, titled 'Collie' making arrangements for obtaining information for use in S600 proceedings 26.05.97

43. Email from Justin O'Halloran, ASC Counsel, to Diane Binstead, ASC Lawyer, titled 'Collie' providing advice concerning the S600 proceedings and enclosing the text of an earlier email from Diane Binstead to Justin O'Halloran 21.05.97 (10 am)

44. Email Justin O'Halloran, ASC Counsel, to Diane Binstead, ASC Lawyer, providing advice concerning the S600 proceedings and enclosing the text of an earlier email from Diane Binstead to Justin O'Halloran 21.05.97 (2 pm)

45. Email Justin O'Halloran, ASC Counsel, to Diane Binstead, ASC Lawyer, providing advice concerning the S600 proceedings and enclosing the text of an earlier email from Diane Binstead to Justin O'Halloran 21.05.97 (noon)

46. Email from Diane Binstead, ASC Lawyer, to Justin O'Halloran, ASC Counsel, titled 'Collie' concerning transcripts of preliminary hearing 13.10.97

47. Draft brief to counsel concerning proceedings commenced by IDS Collie and CH Collie against ASC and others (2 pages only) Not dated

48. Text of letter Diane Binstead, ASC lawyer, to Justin O'Halloran, ASC Counsel, concerning section 600 proceedings against IDS Collie 02.10.97

49. Email from Diane Binstead, ASC Lawyer, to Justin O'Halloran, ASC Counsel, titled 'Collies' concerning section 600 proceedings. 10.10.97

45. The additional documents not exhibited by that affidavit are:

50. Memo from Diane Binstead, ASC Lawyer, to Justin O'Halloran as delegate entitled 'Section 600 - Whether a Notice to Show Cause Should Issue" with annotations 26.02.97

51. Email from Brendon Behan, General Counsel to Stepek, O'Halloran, Binstead, Wentworth summarising advice by private counsel. 13.10.97

46. Having considered each of those documents as to its content I have come to the conclusion that the documents may be characterised in groups bearing a general description. It is that characterisation which determines whether the document is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

Category of Documents Exhibit 2 Documents

(a) Communications for the purpose of obtaining or giving legal advice 16, 18, 19, 20, 21, 22, 23, 25, 27, 28, 37, 47,

(b) Notes and memoranda by lawyers re legal advice 8, 10, 13, 33, 34, 35, 38, 41, 42, 43, 44, 45, 48, 50, 51

(c) Administrative requisitions for information 1, 5, 30, 32, 36, 39

(d) Administrative procedural arrangements   re witnesses 2, 3, 4, 6, 7, 29, 31

(e) Administrative responses to the s 600 procedure 9, 11, 12, 14, 15, 17, 24, 26, 40, 46, 49

47. The documents in categories (c), (d) and (e) are documents created in the course of the respondent's administration of the Corporations Law. The fact that the documents were prepared by or directed to lawyers does not satisfy me that they are documents that would be privileged from production in legal proceedings on the grounds of legal professional privilege.

48. On the other hand documents in categories (a) and (b) are documents which are of such a nature that a claim for privilege could be sustained in legal proceedings. I am therefore satisfied that the documents in categories (a) and (b) as set out in paragraph 44 are exempt documents within the terms of s 42 of the Act.

49. The decision under review will be set aside and the matter remitted to the respondent to reconsider the grant of access to the documents in the light of the Tribunal's reasons.

50. As will be apparent I have not made any decision in relation to the documents in respect of which the respondent claims exemption under s 43 of the Act. No submissions were made in respect of these documents. The parties will have liberty to apply.

51. As to the issue of the charges there is nothing before the Tribunal to suggest that the respondent's charges are other than reasonable and there is nothing of substance to suggest that the charges should be reduced or not imposed. In so far as the applicant seeks review of the charges notified by the respondent the respondent's decision is affirmed.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed: F Burton

Associate

Date/s of Hearing 27 May, 23 July and 2 September 1998

Date of Decision 10 September 1999

Applicant In Person

Solicitor for the Respondent Mr Coburn