FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057 Citation: Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057 Parties: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v AUSTRALIAN LENDING CENTRE PTY LTD, SYDNEY LENDING CENTRE PTY LTD, AMR INVESTMENTS PTY LTD and CHRISTOPHER JOHN RIOTTO File number: NSD 606 of 2010 Judge: PERRAM J Date of judgment: 12 September 2011 Catchwords: PRACTICE AND PROCEDURE – Privilege – application for production of documents disclosed on discovery over which claim for legal professional privilege made – confidentiality – dominant purpose for which documents created Legislation: Australian Securities and Investments Commission Act 2001 (Cth) s 127 Evidence Act 1995 (Cth) ss 117, 118, 119, 131A Evidence Act 1995 (NSW) ss 117, 118, 119, 131A Evidence Act 2008 (VIC) Evidence Amendment (Journalists' Privilege) Act 2007 (Cth) Evidence Amendment Act 2007 (NSW) Cases cited: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 cited Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547 cited Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503 cited Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No.2) (2007) 239 ALR 762 cited Barnes v Federal Commissioner of Taxation (2007) 242 ALR 601 cited Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469 cited Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 cited Johns v Australian Securities Commission (1993) 178 CLR 408 cited Kennedy v Wallace (2004) 142 FCR 185 cited Microsoft Corporation v Fan [2003] FCA 1026 cited Mitsubishi Electric Australia Pty Ltd v Workcover Authority (Vic) (2002) 4 VR 332 cited Ritz Hotel Ltd v Charles of the Ritz Ltd (No.22) (1988) 14 NSWLR 132 cited State of New South Wales v Jackson [2007] NSWCA 279 cited Trade Practices Commission v Sterling (1979) 36 FLR 244 cited Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 cited Date of hearing: 9 September 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 36 Counsel for the Plaintiff: Mr DL Cook Solicitor for the Plaintiff: Australian Securities and Investments Commission Counsel for the Defendants: Mr CR Newlinds SC with Ms S Mahmud Solicitor for the Defendants: S Moran & Co IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 606 of 2010 BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff AND: AUSTRALIAN LENDING CENTRE PTY LTD First Defendant SYDNEY LENDING CENTRE PTY LTD Second Defendant AMR INVESTMENTS PTY LTD Third Defendant CHRISTOPHER JOHN RIOTTO Fourth Defendant JUDGE: PERRAM J DATE OF ORDER: 12 SEPTEMBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The parties bring in short minutes of order within 3 days giving effect to the reasons for decision. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 606 of 2010 BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Plaintiff AND: AUSTRALIAN LENDING CENTRE PTY LTD First Defendant SYDNEY LENDING CENTRE PTY LTD Second Defendant AMR INVESTMENTS PTY LTD Third Defendant CHRISTOPHER JOHN RIOTTO Fourth Defendant JUDGE: PERRAM J DATE: 12 SEPTEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT I. Introduction 1 The present issue is whether certain documents in the possession of the Australian Securities and Investments Commission ('ASIC') are subject to legal professional privilege. ASIC has discovered these documents to the defendants by including them in a list of documents, but has claimed privilege over them and resists, therefore, providing them to the defendants for inspection. 2 There are 160 documents enumerated in the list over which privilege is claimed. In support of its claim for privilege ASIC read three affidavits. One, the affidavit of a Mr Docherty, was the affidavit of discovery verifying that the appropriate and proper searches had been made in compiling the list of documents and indicating the documents in respect of which a claim for privilege was made. Attached to the affidavit is a schedule of the documents in respect of which privilege is claimed and in that schedule each document has been described in some detail. Apart from identifying in that precise way the subject matter of the claims for privilege, Mr Docherty's affidavit is of no further relevance. More substantially, ASIC also relied upon two affidavits of Mr Borchok. Mr Borchok is the head of the team which has been responsible for the investigation into, and the commencement of the present proceedings against, the defendants. Mr Borchok is not a lawyer. 3 In resisting the claim for privilege the defendants submitted that the 160 documents over which privilege was asserted could be divided into four categories. These were: (a) draft affidavits and draft statements of witnesses that ASIC now proposes to call in the proceedings at trial; (b) sworn or signed affidavits, written statements or outlines of evidence of proposed witnesses; (c) email correspondence (including attachments) between ASIC and third parties, including proposed witnesses and their representatives; and (d) file notes of conversations between ASIC and the proposed witnesses. 4 The list bears this out and it is convenient to adopt this fourfold categorisation. This deserves emphasis because, perhaps unlike many such lists, this list deals with a very confined and precisely delimited topic viz the status of witness proofs (howsoever called) and the documents closely associated with them (conference notes, drafts and ancillary correspondence). We are not here, therefore, concerned with some general list in which the documents in which privilege is claimed are an unalloyed mass. 5 The proceedings were commenced on 31 May 2010. All bar two of the documents in the list appear to have been created before that date: this is certainly true of those documents which are dated; and it was not submitted by either party that any of the undated documents post-dated the commencement of the litigation. Mr Docherty's list also shows that the material consists of communications and documents passing between lawyers within ASIC and third parties and also non-lawyers within ASIC and third parties. II. Statute or common law? 6 Because we are here concerned with the question of whether inspection should be permitted of documents discovered as part of pre-trial procedures the matter is not covered by either s 118 or s 119 of the Evidence Act 1995 (Cth) ('the Act') which deal only with the issue of legal privilege in the context of the adduction of evidence. The Act is largely in identical terms to the Evidence Act 1995 (NSW) ('the NSW Act'). Both of these statutes were passed in response to the Australian Law Reform Commission's report Evidence (ALRC 38) (1987). In 2008, the Victorian Parliament adopted the uniform Evidence Acts on the passage of the Evidence Act 2008 (Vic). In the case of all three of these statutes the entire topic of privilege is dealt with in Part 3.10; in each the privileges arising in relation to legal advice and those relating to litigation are contained in similar terms in ss 118 and 119; and in each the privileges are said in terms to apply to the adduction of evidence which, as a phrase, is not naturally apposite to describe what occurs where privilege is claimed, not as a shield against giving certain testimony or as a bar to the tender of real evidence, but instead as a reason for not complying with some obligation of production arising outside the evidentiary arena. 7 In December 2005, in a joint report entitled Uniform Evidence Law (ALRC 102), the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission recommended that the 'client legal privilege provisions of the uniform Evidence Acts should apply to any compulsory process for disclosure, such as pre-trial discovery and the production of documents in response to a subpoena…' (Recommendation 14-1). This recommendation was adopted by New South Wales on the passage of the Evidence Amendment Act 2007 (NSW) which introduced s 131A. It provides, in effect, that the client legal privilege provisions in Part 3.10 should apply to situations where production of documents, rather than adduction of evidence, is in issue. When the Victorian Parliament passed the Evidence Act it too included a s 131A which, whilst not identical, did achieve the same result in terms of client legal privilege. 8 The Commonwealth has also enacted a s 131A but this provision does not implement the joint recommendation. Section 131A extends to processes under which documents are produced (such as discovery and subpoenas) only one of the privileges contained in Part 3.10 and this is the privilege erected by Division 1A in favour of journalists and their sources. This was brought about by the passage of the Evidence Amendment (Journalists' Privilege) Act 2007 (Cth). 9 The position therefore is that in Commonwealth Courts the law of client privilege to be applied to questions of evidence will be that contained in ss 118 and 119 but that where questions of discovery or document production arise it will be that provided for by the common law. The rationality of this position – particularly given a sensible recommendation from not one but three law reform commissions that it be fixed six years ago – is not at once obvious. III. The issues which arise 10 The defendants submitted that: (a) the communications between ASIC and the witnesses were not confidential; (b) the communications were not created in contemplation of litigation so that there could be no privilege attaching to them; (c) the communications were not created for the dominant purpose of the conduct of litigation but rather for the purpose of carrying out an investigation; and (d) in the case of the signed witness affidavits, ASIC had not shown what the purpose of each witness was in signing the affidavit and hence it could not show that the signed affidavits were privileged. 11 Since the matter is not governed by ss 118 and 119 of the Act one begins with the reasons for judgment of Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244. His Honour, in an oft-applied passage, set out a number of accepted categories for which legal professional privilege might be claimed. ASIC relied upon the following (at 246): (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. 12 A number of the communications in this case passed not between ASIC's lawyers and third parties but between third parties and employees of ASIC who were not lawyers, but who were working on the matter. Such persons are, I think, to be treated in terms of privilege as if they were the client (as, in a sense, ASIC itself was). Accordingly, also relevant to the present issues is item (f) in the same list in Sterling: (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 or enabling him to prosecute or defend an action. 13 Mr Cook of counsel, who appeared for ASIC, placed reliance upon category (e) above and, in particular, its explicit reference to the obtaining of evidence. The collection of witness statements was, on this view of things, paradigmatically privileged so long as the litigation was anticipated. I return to that question below. In the meantime it is useful to turn to the first of the four issues set out above, that is, confidentiality. IV. Confidentiality – issue (a) 14 Mr Newlinds SC, who, with Ms Mahmud of counsel, appeared for the defendants, submitted that it was not shown that the communications were confidential – the witnesses were free to speak of what they had told ASIC to anyone else and there was no prohibition on ASIC not releasing the statements itself. I interpolate at this point that it was not in dispute that ASIC had, in fact, kept the materials entirely confidential. Mr Cook parried these propositions in two distinct ways. First, he submitted that at common law the question of whether interview materials with proposed witnesses are confidential depends on the identity of the person from whom production is being sought; or to put the matter a different way, it is possible for the materials to be confidential in the hands of the lawyers who take the statement but not in the hands of the witness. What is necessary, therefore, is that the documents in question be confidential in the hands of the person from whom production is sought. Speaking of the situation where production was sought of such materials from a third party witness having no relationship of confidentiality with the plaintiff McLelland J thought in Ritz Hotel Ltd v Charles of the Ritz Ltd (No.22) (1988) 14 NSWLR 132 at 134 that 'the question whether a claim for protection from disclosure of the communications on the basis of legal professional privilege should be upheld would in my opinion depend on whether the disclosure sought is, on the one hand, from the party or his solicitor or representative, in which case the claim should succeed, or, on the other hand, from the independent witness, in which case the claim should fail.' 15 Secondly, it being therefore necessary to focus on whether ASIC – rather than the witnesses – received the materials in confidential circumstances, attention was to be directed to s 127 of the Australian Securities and Investments Commission Act 2001 (Cth) and its requirement that ASIC 'must take all reasonable measures to protect from unauthorised use or disclosure information: (a) ….in connection with the performance of its functions or the exercise of its powers under the corporations legislation'. It not being in dispute that whatever ASIC was doing during this time was being done in connexion with the performance of its functions or the exercise of its powers under the Australian Securities and Investments Commission Act and the Corporations Act 2001 (Cth) it followed that its possession of the material was confidential in the requisite sense. 16 Mr Newlinds SC and Ms Mahmud in their written submissions argued that in relation to the draft witness statements which ASIC had provided to third party witnesses there could be no confidentiality and cited State of New South Wales v Jackson [2007] NSWCA 279 in support of that proposition. There is no doubt that that decision of the Court of Appeal did so hold but there is no inconsistency between that conclusion and the decision of McLelland J in Ritz Hotel for the former is concerned with the operation of the NSW Act and the latter, the common law. Giles JA (with whom Mason P and Beazley JA agreed) closely considered Ritz Hotel (esp. at [53]-[55]) and McLelland J's conclusion that the question of confidentiality might depend for its answer upon the identity of the person from whom production was sought. Giles JA noted that this was not an issue under the NSW Act ('[d]ifferential confidentiality does not matter for the definitions in the Act, since it is enough that one of the parties to the communication or the preparation of the document is under an obligation not to disclose its contents': [55]). But there was a critical difference between the operation of the common law and the NSW Act. Both required that there be confidentiality but at common law it was sufficient that the confidential nature of the communication could spring from the fact of its being privileged. Under the definition of 'confidential communication' contained in s 117 the ultimate conclusion that a communication was privileged could not assist in determining that it was confidential in that circular fashion. 'Confidential communication' is defined in s 117 of both the Act and the NSW Act to be a communication 'made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.' Giles JA was content to accept that the rationale for litigation privilege was not rooted in the confidentiality of the relationship but instead in providing what has been referred to as a 'zone of privacy' for a solicitor's work product. 'But I do not think' said Giles JA 'that this reasoning is available in order to find a confidential communication or a confidential document within the meaning of the definitions in s 117(1) of the Act. The rationale involves confidentiality, but it is confidentiality afforded by the privilege itself. The party's interest in keeping confidential the communication or document it received is not confidentiality because of an express or implied obligation on the party not to disclose the communication or document. It is confidentiality because of protection from compulsory disclosure by the party' (at [58]). 17 It follows that on this particular issue the common law and the Act significantly diverge. If the Act applied I would conclude that it was not enough, by itself, to engender litigation privilege that ASIC consulted with third party witnesses to prepare witness statements in contemplation of litigation. However, because the matter is governed by the common law it is sufficient. 18 In any event, even if that were not so, I would have accepted Mr Cook's secondary argument that ASIC came into possession of the materials in circumstances attended by an obligation of confidentiality. The consequence of Ritz Hotel is that Mr Cook had no need of this second string; its relevance would only arise if the matter were governed by the Act (it not being in dispute that the documents in question had not been disclosed to anyone else). But had the matter been governed by the Act it would have provided the obligation of confidentiality referred to in s 117(1). Mr Newlinds SC, in his succinct argument, submitted that the obligation erected by s 127(1) of the Australian Securities and Investments Commission Act was so cut through with exceptions that the obligation thereby erected could not constitute a sufficient obligation of confidentiality. So, for example, under s 127(2A) ASIC could disclose material obtained in the course of the performance of its functions to the Minister, the Secretary of the Department, the Australian Prudential Regulation Authority or the Reserve Bank of Australia; s 127(2B) permitted disclosure to a Royal Commission; and s 127(4) permitted disclosure to a wide variety of government agencies if the Chairperson of ASIC were satisfied that that disclosure would assist the relevant agency in the discharge of its functions. 19 I do not think, however, that the possibility that these exceptions might be hypothetically activated in a particular case means that the obligation of confidentiality conferred by s 127(1) does not relevantly exist. Mr Newlinds SC took me to the High Court's decision in Johns v Australian Securities Commission (1993) 178 CLR 408 to make good the defendants' argument but I confess it seems to me to establish the contrary proposition. In that case, Mr Johns had been the subject of compulsory examination by the Commission from which transcripts had been produced. The hearings at which this occurred were private hearings. Apart from a presently irrelevant issue as to the ability of the Commission to impose conditions on the use to which disclosed transcripts might be put, the first issue was whether the Commission was obliged to afford Mr Johns procedural fairness before authorising the Royal Commission to use its transcripts in public. The second issue was whether there should be any relief against media outlets who had published parts of them in the public domain. The Court upheld Mr Johns' argument on the first issue and rejected it on the second. Three of the five Justices thought that the Commission's obligation to keep the transcript confidential (and Mr Johns' corresponding right to that effect) were sufficient interests to attract the rules of procedural fairness. Speaking of the power to release the transcripts to a State agency (which included the Royal Commission) Brennan J (with whom Dawson and Gaudron JJ agreed on this issue) thought that the exercise of that power (the power in s 127(4)(b)) 'is apt to affect adversely the interests of an examinee who is prima facie entitled to have the confidentiality of the transcript of the examination observed' (at 430). McHugh J also thought that the obligation arose but his Honour located its source in Mr Johns' interest in his reputation (at 470-471). 20 In any event, the ratio decidendi of Johns is that the obligation of confidentiality arising from s 127(4)(b) is a sufficient one to bring into play the common law obligation to afford the party having the benefit of the obligation procedural fairness. That conclusion was not blocked by the fact that the statutory obligation of confidentiality was subject to statutory exceptions; it was not submitted, and it was not held, that there was an absence of confidentiality on that basis. Three of the Justices did think that the confidentiality generated by s 127(4)(b) had been lost by reason of the publication in the media of the transcripts so that they had ceased to have the necessary quality of confidence for the purposes of the law of confidential information (the remaining two Justices thought the evidence on that topic inadequate and would have remitted the matter to the Court below for further hearing on that issue). 21 In those circumstances, I cannot extract from Johns the proposition that there is no relevant obligation of confidentiality arising from s 127 merely because it is subject to exceptions, at least for the common law of procedural fairness. Nor do I think that such a proposition should be embraced for privilege purposes. No doubt, where it is shown (as it was in Johns) that confidentiality has been lost as a matter of fact then it will be pointless to say, either as a matter of the law of privilege or of procedural fairness, that confidentiality exists. But until that factual occurrence, the hypothetical possibility that such disclosures may occur under the terms of s 127 itself is not sufficient to mean that there is no obligation of confidentiality. 22 In the defendants' written submissions a slightly different tack was taken. There was no evidence 'to justify the existence of any obligation, be it express or implied, on the relevant witness to keep the documents confidential'. Reference was again made to Jackson for the proposition that 'where documents were provided to or shown to the third party witnesses there cannot have been any element of confidentiality on either ASIC or the third party witness'. But this ignores the fact that in Jackson there was no provision such as s 127(1). In those circumstances, I conclude that all of the communications were relevantly confidential. V. Whether communications occurred in contemplation of litigation – issue (b) 23 The prevailing view is that litigation will be contemplated where it is a real prospect as distinct from a mere possibility: Mitsubishi Electric Australia Pty Ltd v Workcover Authority (Vic) (2002) 4 VR 332 at 341 [19] per Batt JA. Although the earlier decision of Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 559 suggested that anticipation would only be established where it was shown the litigation was more likely than not, that view has not held sway in this Court where the Mitsubishi line has been preferred: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No.2) (2007) 239 ALR 762 at 775 [54] per Heerey J. On appeal Weinberg J doubted that the two tests were different and Lander J (with whom Moore J agreed) did not think he needed to decide between the two: see Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122. There are, as Heerey J pointed out, two first instance decisions supporting the Mitsubishi line: Microsoft Corporation v Fan [2003] FCA 1026 at [73]-[75] per Jacobson J and Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2005] FCA 503 at [8] per Allsop J. In that circumstance, I will proceed on the basis that it is the Mitsubishi test which is to be applied. 24 When was there a real prospect that litigation would be commenced? Mr Cook's primary submission was that it was on 18 December 2008 (bearing in mind that the litigation was commenced on 31 May 2010). The basis for the argument was as follows: Within ASIC there is a Misconduct and Breach Reporting Team. At some time prior to 10 December 2008 that team had been assessing the activities of the second defendant ('Sydney Lending Centre') and the third defendant ('AMR Investments') as had another element within ASIC known as the Deposit Takers, Credit and Insurers Team. Between them they had examined the files of three clients as well as the complaints which had been made by those clients. They had also obtained from the Sydney Lending Centre and AMR Investments information which they had then reviewed. On 10 December 2008 the Deposit Takers, Credit and Insurers Team decided to refer the matter to the Financial Services Deterrence Team for investigation. Mr Borchok's team is part of that team. At the time of the referral on 10 December 2008 Mr Borchok thought that the referral to his team 'was more advanced and detailed in regards to the suspected conduct than most referrals to Deterrence that I have seen in my current role'. On 18 December 2008 Mr Borchok attended a meeting at which it was decided to accept the referral. The form of the minute recording the acceptance of the referral included these statements: Referral accepted to investigate the lending practice conduct in NSW of Christopher Riotto and related entities Australian Lending Centre Pty Ltd, Sydney Lending Centre Pty Ltd and AMR Investments Pty Ltd, including in relation to false records as to loan purpose, excessive interest and fees, disproportionate loan security and misleading and deceptive conduct and unconscionable conduct. Riotto has a profile in the finance broking industry and it will be important for ASIC to be seen to be active in regulating this area with the pending transfer of credit law regulation to ASIC and the new licensing regime. The objective will be to establish evidence of and seek declarations as to contraventions which will highlight the unlawful practices in this currently unregulated sector, which will ultimately be relevant to the eligibility of Riotto and related entities for any licence under the new regime. 25 Mr Cook submitted, in that circumstance, that it was on that date (that is, 18 December 2008) that litigation was anticipated. I do not accept that submission. Mr Borchok's team had taken no investigatory steps at that stage. Indeed, it was not until 16 January 2009 that Mr Borchok, as a delegate of ASIC, resolved that the suspected contraventions by the defendants should be investigated. Mr Borchok's evidence was that it was from that point on that he 'considered that it was likely that, subject to the further evidence that ASIC obtained during its investigation, ASIC would commence proceedings against the [defendants]'. That evidence is not strictly inconsistent with the proposition that litigation was on the cards on 18 December 2008 but it certainly does not help it. In any event, the material constituted by the referral and Mr Borchok's evidence about the steps leading to it do not provide a sufficient basis to be able to say that on 18 December 2008 litigation was anything other than a mere possibility. 26 On other hand, Mr Borchok's evidence does suggest that he, at least, thought litigation likely from 16 January 2009 (subject to further evidence which might be obtained). In their written submissions the defendants made plain that they wished to cross-examine Mr Borchok but this was not pursued at the hearing. In that circumstance, I propose to accept this evidence. It is true, as Mr Newlinds SC pointed out, that Mr Borchok did not have the authority to commence proceedings and that he was not, in a relevant sense, ASIC. In Visy (No.2) Heerey J was confronted with much the same submission in relation to the ACCC and he rejected it: 'The people who are supervising the actual work which generates the documents in question will not necessarily be the ones who can decide to commit the corporate body to litigation. However, if as a matter of organisational reality, they are responsible for the work in question it will be appropriate to impute their state of mind to the corporation' (at 777 [64]). I see no reason not to follow that approach. In this case, that person is Mr Borchok. It is true that his evidence was subject to the caveat that it was subject to further evidence but I do not think he could have said otherwise at the outset of the investigation no matter how likely he thought the litigation. 27 In those circumstances, I conclude that litigation was anticipated from 16 January 2009. VI. Dominant purpose of the communications – issue (c) 28 Although the common law at one time refused to accord privilege to communications which were not made with the sole purpose of assisting in litigation or providing advice that was altered by the High Court's decision in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 to move to the dominant purpose test. Mr Borchok's evidence was that the witnesses were interviewed and their affidavits (both draft and final) prepared for the purposes of what he referred to as the 'contemplated proceedings'. The notes of the interviews with the witnesses were also said to be for that same purpose, as was the correspondence with the witnesses relating to those affidavits. 29 Mr Newlinds SC criticised this evidence as being the kind of verbal formula or conclusory assertion of privilege which has all too often been found by Courts to be insufficient: see for example, Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469 at 477 [22] per White J; and in this Court, Kennedy v Wallace (2004) 142 FCR 185 at 189 per Black CJ and Emmett J; and Barnes v Federal Commissioner of Taxation (2007) 242 ALR 601 at 605 [18] per the Court. This was said to be particularly so when it was apparent that throughout the period between the commencement of the investigation on 16 January 2009 and the commencement of the proceedings on 31 May 2010 ASIC had used its compulsory powers which, it was submitted, could not be used as an aid to the conduct of litigation. So viewed, there were three purposes: the purpose of investigation; the purpose of obtaining legal advice; and the purpose of conducting litigation. Mr Borchok's evidence did not sufficiently expose why it was the litigation purpose which was predominant. 30 I reject this argument which rests on a false dichotomy between an investigation and an anticipation of litigation. I see no particular difficulties in accepting that there will be periods during many investigations when litigation is very likely. In the real world, there is no precise moment when investigation ceases and the contemplation of litigation begins; life is not nearly so tidy. Hence, I reject the proposition that because investigations were continuing this meant that it cannot also have been the fact that the witness statements were being garnered for an expected court case. 31 Mr Borchok's evidence was that all of the documents relating to the witnesses were created for the purpose of the anticipated litigation. Unlike the verbal formulae criticised in the cases to which reference has already been made, this evidence was inherently plausible. ASIC was conducting an investigation with a view to suing the defendants for misconduct; it interviewed witnesses and prepared affidavits for them to swear; the documents were all precisely described; it was clearly contemplating litigation. Mr Borchok's evidence is therefore neither conclusory nor formulaic. 32 The defendants submitted that I could not be clear that the litigation purpose was the dominant or 'prevailing' purpose. I do not accept this. I accept Mr Borchok's evidence that it was the purpose for which the witnesses were interviewed and their affidavits taken (and with that the ancillary correspondence). I do not accept that the defendants' submissions about investigatory purposes have risen any further than showing that there was an investigatory purpose (by reason of their having shown that compulsory processes were used after 16 January 2009). Accepting that to be so does not, however, without more permit me to reject Mr Borchok's evidence; more is this so when he was not cross-examined about it. 33 I conclude, therefore, that each of the four categories of document was created for the dominant purpose of use in contemplated litigation. VII. The position of sworn affidavits – issue (d) 34 Mr Newlinds SC also submitted that the position of the signed affidavits was different even if everything else were privileged. Reliance was placed on Buzzle. I do not think, however, that this assists the defendants. It is true that in that case it was held that sworn affidavits and signed witness statements which had been served in other litigation (although not used) were not privileged even though they had been served under directions requiring their service. A similar conclusion was reached at almost the same time by the Full Court of this Court in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547. But those cases bear no resemblance to the current facts: these affidavits have never been served on anyone and have maintained their confidential nature. I do not see in that situation that either case has any relevance. 35 In the defendants' written submissions a different point was made: ASIC could not give evidence of the purpose for which the witnesses had signed their affidavits: Buzzle at 477 [21]. That may well be so. In a common law context, however, it is irrelevant for the relevant purpose is that of ASIC: see Ritz Hotel. VIII. Orders 36 ASIC is entitled to maintain its claims for privilege for all of the documents coming into existence on or after 16 January 2009. Both parties have had some measure of success so there should be no order as to costs. The parties are to bring in short minutes of order within 3 days giving effect to these reasons. Those short minutes should resolve the status of the interlocutory application of 11 August 2011. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 12 September 2011