FEDERAL COURT OF AUSTRALIA AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 4) [2006] FCA 1050 INJUNCTIONS – application to restrain publication of documents pending hearing and determination of proceedings – where documents produced to Commission of Inquiry without claim for confidentiality or legal professional privilege – where Commissioner proposes to publish documents containing statements in relation to legal advice the subject of proceedings CONTEMPT OF COURT – whether publication of documents would constitute contempt of court – whether real risk of interference with Court processes or administration of justice generally – balance of convenience – consideration of public interest – where documents proposed to be published prior to forthcoming Commission hearings Royal Commissions Act 1902 (Cth) s 6D(3) Federal Court of Australia Act 1976 (Cth) s 23 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 cited Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 cited Brambles Holdings Limited v Trade Practices Commission (1980) 32 ALR 328 applied Hammond v Commonwealth (1982) 152 CLR 188 applied Victoria v Australian Building Construction Employees & Builders Labourers' Federation (1982) 152 CLR 25 applied Mann v Carnell (1999) 201 CLR 1 cited AWB LIMITED (ACN 081 890 459) v THE HONOURABLE TERENCE RHODERIC HUDSON COLE AO RFD QC AND COMMONWEALTH OF AUSTRALIA VID 594 OF 2006 YOUNG J 10 AUGUST 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 594 OF 2006 BETWEEN: AWB LIMITED (ACN 081 890 459) Applicant AND: THE HONOURABLE TERENCE RHODERIC HUDSON COLE AO RFD QC First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent JUDGE: YOUNG J DATE OF ORDER: 10 AUGUST 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The order made by the Court on 9 August 2006 restraining the First Respondent from publishing or disclosing any of the documents or statements referred to in Exhibit JM-C4 to the affidavit of John Mitchell sworn 9 August 2006 until 4.30pm today be vacated. 2. The Applicant's notice of motion dated 10 August 2006 be dismissed. 3. There be no order as to the costs of the Applicant's notice of motion dated 10 August 2006. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 594 OF 2006 BETWEEN: AWB LIMITED (ACN 081 890 459) Applicant AND: THE HONOURABLE TERENCE RHODERIC HUDSON COLE AO RFD QC First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent JUDGE: YOUNG J DATE: 10 AUGUST 2006 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 9 August 2006, I made an interim order on the ex parte application of the applicant, AWB Limited ('AWB'), restraining the first respondent until 4.30pm on 10 August 2006 from publishing or disclosing any of the documents referred to in exhibit JMC4 to the affidavit of Mr John Mitchell, sworn 9 August 2006 ('the documents'). The documents comprise draft statements of contrition which are no longer the subject of a claim for legal professional privilege and which contain various references to legal advice obtained by AWB. 2 AWB now applies, by notice of motion dated 10 August 2006, for a continuation of the non-publication order until the hearing or determination of this proceeding. The first respondent has informed the Court that he will abide any order of the Court, but that in the absence of a restraining order he proposes to publish the documents as they are no longer the subject of a claim for legal professional privilege. background 3 On 25 May 2006, AWB supplied the documents to the Commission of Inquiry that is being conducted by the first respondent ('the Inquiry') pursuant to notices to produce issued by the first respondent. The documents had originally been withheld from production on the ground of legal professional privilege. After my decision in AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571, AWB determined that a claim for privilege could not be maintained over the documents. AWB supplied the documents to the Inquiry under cover of a letter dated 25 May 2006 which stated that it did not claim legal professional privilege over the documents. The covering letter did not make any claim that the documents should be kept confidential. In the course of proceedings before me, Mr Judd, senor counsel for AWB, confirmed that AWB does not seek to assert any claim of legal professional privilege over the documents. 4 In correspondence and other exchanges between AWB's solicitors and the Inquiry this week, the Inquiry told AWB on several occasions that it intends to publish the documents. The most relevant exchanges are these: (a) On 8 August 2006, the solicitor assisting the Inquiry, Mr Owbridge, wrote to the solicitors for AWB and advised that the documents would be tendered at the Inquiry on 8 or 9 August 2006. In this letter, Mr Owbridge observed that there appeared to be no commercial confidentiality claims in respect of any of the documents. (b) AWB's solicitors immediately responded by letter dated 8 August 2006 and requested confirmation that the Inquiry would not take any action to publish any of the documents pending the determination of this proceeding. This letter appears to have crossed with an email from Mr Owbridge which stated that the documents would be published on the Inquiry's website shortly rather than later on 8 August 2006 as previously advised. (c) Mr Mitchell then had a telephone conversation with Mr Owbridge in which Mr Mitchell asked for an opportunity to claim confidentiality and to consider any privilege issues that arise out of the production of the documents to the Inquiry. (d) A little later that day Mr Owbridge sent an email to AWB's solicitors stating that the documents would be published at 5.00pm on 8 August 2006, pending AWB's claims for commercial confidentiality. (e) AWB's solicitors responded by a further letter dated 8 August and asked that the documents be kept confidential and not published and advised that disclosure of those parts of the documents that referred to earlier legal advice would, if published on the website, adversely affect AWB's claims for legal professional privilege in this proceeding. (f) The Inquiry's final letter on 8 August 2006 advised AWB's solicitors that the documents would not be published before midday on 9 August 2006. (g) A few minutes before 4.15pm on 9 August 2006, AWB's solicitors received a letter from the solicitor assisting the Inquiry which advised that, as no sensible basis had been advanced as to why the documents should remain confidential and as no application to restrain publication had been made, the Inquiry proposed to publish the documents at 4.30pm that afternoon. The last mentioned letter led directly to AWB's ex parte application and my interim order of 9 August 2006. 5 On 10 August 2006, the solicitors acting for the first respondent in this proceeding forwarded a letter to AWB's solicitors which advised that, while the first respondent would abide an order of the Court, his position remained that he proposed to publish the documents on the Inquiry's website as they were not the subject of any claim for legal professional privilege. The letter also advised that the Inquiry wishes to publish the documents prior to the resumption of hearings by the Inquiry so that persons given leave to appear will have a reasonable opportunity of considering the additional documentary evidence. The first respondent intends to resume public hearings on 22 August 2006. alleged interference with the court's processes 6 AWB founds its application for interlocutory relief on the contention that publication of the documents would interfere with the orderly disposition of the issues in this case, or in subsequent cases, and therefore amounts to a threatened contempt of Court. AWB submitted that one of the issues in this case is that of imputed waiver. Specifically, the issue before this Court is whether AWB has waived privilege over documents that are said to be associated with legal advices that AWB has disclosed to the Inquiry. In these circumstances, AWB submitted that the Commonwealth may wish to use the Inquiry's public dissemination of the documents to support its imputed waiver argument in this case, and that other litigants may wish to do so in subsequent cases. 7 This Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power extends to the making of orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 ('Patrick'), at 32-33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, and at 61-62 [127] per Gaudron J; and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 217-218 [10]-[12] and [15] per Gleeson CJ, at 231-232 [60] per Gaudron J, and at 241 [91] and 242-243 [93]-[94] per Gummow and Hayne JJ. The authorities establish that Courts can restrain executive action where it poses a real risk of interfering with the processes of the Court or the administration of justice generally: see Brambles Holdings Limited v Trade Practices Commission (1980) 32 ALR 328; Hammond v Commonwealth (1982) 152 CLR 188; and Victoria v Australian Building Construction Employees & Builders Labourers' Federation (1982) 152 CLR 25. 8 Where the Court is considering an interlocutory injunction based on an apprehended contempt of Court, the Court asks whether the conduct poses a real risk of interfering with the processes of the Court or the administration of justice generally. As this question will only arise on the interlocutory application, and not at trial, the question is not normally posed in terms of a serious question to be tried. Rather, the question is whether the evidence establishes a real risk of interference. 9 In the circumstances of this case, I am not satisfied that the material demonstrates a real risk that the publication of the documents will interfere with the processes of the Court or the administration of justice generally. I have reached that conclusion for several reasons. 10 In the first place, AWB provided the documents to the Commission pursuant to notices to produce on the footing that the documents are no longer the subject of the claim for legal professional privilege. Any conduct by AWB from which waiver could be imputed ended at the point at which it disclosed the references to legal advice to the Inquiry. Any further publication beyond that point is solely attributable to the first respondent. Further, AWB has asserted a claim for confidentiality and it has asked the Commission not to publish the documents on grounds of confidentiality. Section 6D(3) of the Royal Commissions Act 1902 (Cth) gives the first respondent the power to direct that documents relevant to his inquiries not be published. The terms of reference of the Inquiry also contemplate that the first respondent will take steps to protect the confidentiality of documents where it is appropriate to do so. AWB's claim for confidentiality was founded on the same risk of prejudice as underpins this application; there was no claim for commercial confidentiality. The first respondent rejected the claim for confidentiality and has apparently formed the view that it is necessary to publish the documents for the purposes of the forthcoming hearings. 11 In claiming confidentiality (albeit unsuccessfully) and in making this application for an interlocutory injunction, AWB has done everything within its power to prevent the publication of the documents. It is difficult to see why, in those circumstances, the step that the Inquiry wishes to take of publishing the documents on its website would increase the risk that AWB's conduct would be regarded as effecting a waiver of privilege over other documents. Imputed waiver arises where the party claiming legal professional privilege engages in conduct which is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect: Mann v Carnell (1999) 201 CLR 1 at 13 [29]. 12 Secondly, the references to legal advice in the documents have essentially the same character as other disclosures that AWB has previously made to the Commission. Those disclosures have been the subject of evidence in public proceedings at the Inquiry, and are already in the public domain. It is difficult to see why the additional references in the documents to legal advice would alter the risk of waiver that AWB already confronts as a result of the prior publication of very similar material. 13 Thirdly, in the course of this case, the Commonwealth has relied upon previous occasions on which AWB has disclosed the existence and substance of legal advice to contend that AWB has waived legal professional privilege over associated documents. Mr Harrison, senior counsel for the Commonwealth, informed the Court that the Commonwealth does not intend to rely upon the further references to legal advice in the documents in support of its waiver arguments in these proceedings. 14 AWB argues that, even if these additional references are not to be relied upon by the Commonwealth in this case, that does not remove the risk that in another piece of litigation, at some later point, some other party will seek to rely upon these additional references to argue that AWB has thereby waived privilege over other documents. I do not think that this possible future circumstance supports AWB's contention that publication poses a real risk of interference with the processes of this Court or the administration of justice generally. 15 AWB did not base its application on any contention that the first respondent had exercised his powers improperly or for any extraneous purpose. Its application was based solely on principles of contempt of Court. balance of convenience 16 Turning to the balance of convenience, I am not satisfied that the publication of the documents will cause irreparable harm or any serious prejudice to AWB. In my view, the risk of prejudice to which AWB points is remote. 17 I must also take account of the public interest in the conduct of the Inquiry and the first respondent's desire to conduct further proceedings in public at which these additional documents may be the subject of evidence. This consideration outweighs the remote risk of any prejudice to AWB. conclusion 18 For these reasons, I refuse the application for interlocutory relief. I will vacate the order which I made on 9 August 2006. I will also dismiss the notice of motion dated 10 August 2006. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 14 August 2006 Counsel for the Applicant: J Judd QC, P Corbett and Dr S McNicol Solicitor for the Applicant: Arnold Bloch Leibler Solicitor for the First Respondent: A Potton of Australian Government Solicitor Counsel for the Second Respondent: I Harrison SC and NJ Beaumont Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 10 August 2006 Date of Judgment: 10 August 2006