FEDERAL COURT OF AUSTRALIA Chief Executive Officer of Australian Transaction Reports and Analysis Centre v TAB Limited (No 2) [2016] FCA 148 File number: NSD 852 of 2015 Judge: PERRAM J Date of judgment: 26 February 2016 Date of hearing: 23 February 2016 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Category: No Catchwords Number of paragraphs: 9 Counsel for the Applicant: Mr S White SC and Ms A Avery-Williams Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Ms R C A Higgins Solicitor for the Respondents: Herbert Smith Freehills REASONS FOR JUDGMENT 1 On Friday 12 February 2016 I heard argument in this matter on whether a notice to produce issued by Austrac to the respondents ('the TAB') should be set aside. On Monday 15 February 2016 I made orders dismissing in part the TAB's application. On Friday 19 February 2016 I published reasons for taking that course: Chief Executive Officer of Australian Transaction Reports and Analysis Centre v TAB Limited [2016] FCA 122. The matter was stood over to Tuesday 23 February 2016 for further directions. At that directions hearing counsel for the TAB raised with me the correctness of observations I made at paragraphs [55] and [62] of the reasons. Those paragraphs were as follows: '55 I have rejected the TAB's general argument about oppression above. Quite apart from that, however, it strikes me as quite untenable for a listed entity seriously to advance in a superior court the submission that it would be oppressive for it to be required to produce the minutes of its directors' meetings. In earlier correspondence between the parties, on 12 July 2012, it suggested to Austrac that the relevant board minutes had been stored on an external hard drive which had been corrupted. This suggestion was not repeated to me. 62 I should say that although for the purposes of this application I have accepted the TAB's evidence about how long it will take to produce the material requested under paragraphs 9 and 29 of the notice, I entertain a considerable degree of scepticism about this. In large part this is a result of the TAB's contention that it is oppressive for it to produce its board minutes, a proposition which I regard as outlandish. Departures from this timetable will need, if they are to be entertained, direct evidence about the problems which have arisen from the people who know.' 2 Although the matter was not altogether clear, I apprehended that the TAB sought to submit that my conclusion that it had argued that it was oppressive for it to have to produce its board minutes was incorrect and that I should not be labouring under the misapprehension that it had sought to do such a thing. It was not directly submitted that I should revise my reasons but it is reasonable, I think, that if I formed the view that what I had said was erroneous because no such submission had been made, fairness would require its correction in some way. 3 Three paragraphs of the notice to produce are involved: 21, 23 and 29. They were respectively as follows: '21. minutes of the Board of each respondent adopting or approving the Joint Program referred to in paragraph 1204 of the Defence. 23. minutes of the Board of each respondent adopting or approving all AML/CTF programs maintained by the respondents for the period 25 September 2012 to 1 February 2013. 29. the following referred to in Sections 2 (page 3) and 3 (page 4) of the Joint AML/CTF Program v0.09 dated 25 September 2012, for the period 25 September 2012 to 21 July 2015: 29.1. Compliance Framework; 29.2. Annual Compliance Plans; 29.3. minutes of the Board Audit, Risk and Compliance Committee reviewing and approving annually the documents referred to at 29.1 and 29.2 above; 29.4. reports by the GM Regulatory Integrity and Responsible Gambling informing the Board Audit, Risk and Compliance Committee of significant matters of non-compliance with the AML/CTF Program; 29.5. minutes of the Board Audit, Risk and Compliance Committee's consideration of the reports referred to at paragraph 29.4 above.' 4 There is no doubt that the allegation of oppression was withdrawn in relation to paragraph 23 of the notice. There is some ambiguity in relation to paragraph 21, where Ms Warner appears to assert oppression in paragraph 25 of her second affidavit but, on one view at least, not to assert it in paragraph 26. In relation to paragraph 29 of the notice, it is quite clear to me that the oppression argument was run and not withdrawn. 5 However, I accept the correctness of what the TAB submits in substance. Much of the debate at the hearing concerned the width of the opening words of the notice 'evidence or record'. The oppression submissions put to me hinged, in part, on a reading of these words which saw them take in not just the documents actually sought but also other secondary materials from which their contents might be deduced. On that view of affairs, the scope of the various paragraphs was potentially much greater. 6 I rejected this broad reading of the words 'evidence or record' at paragraphs [25]-[26] of the reasons: '25 For completeness, it should be noted that the TAB also objected to the notice because of its use of the wording in the covering paragraph of 'evidence or record'. The objection was not that this was a disguised version of discovery or inappropriate, in principle, for use in a notice to produce. Rather, the objection was that the words were sufficiently broad to encompass material which might provide secondary evidence of the matters sought. So, for example, where in paragraph 21 board minutes were sought, the effect of the opening words was said to mean that not only would the board minutes themselves be liable to be produced, but also any other documents from which their content might be deduced, such as drafts, emails to which they were attached and so on. 26 If the words 'evidence or record' were that broad in their ordinary connotation then I would incline to the view that this argument was of substance and real prejudice, otherwise unwarranted by forensic utility, demonstrated. That, however, is not how I read the notice. It is, I think, tolerably clear that it seeks direct evidence of the matters enumerated in its various paragraphs, rather than secondary or indirect evidence of those matters. A parallel reason for arriving at the same conclusion arises from the word 'record' itself, which is not apt, in its natural meaning, to fit comfortably alongside a reading of 'evidence' that extends to secondary evidence. On the basis of that reading of the notice, I reject the challenge.' 7 The situation which then appears to have arisen is that having construed the notice much more narrowly than the TAB did I have concluded that its oppression claims, especially in relation to items such as board minutes, were unreasonable. However, I accept that the oppression claims which were actually pursued were premised on a much broader reading of the notice than the one I have concluded is correct. This has resulted in an unfairness because the TAB has not claimed to be oppressed merely by being required to produce its board minutes but rather by the need to produce any material which might, in the much broader sense I have rejected, 'evidence or record' those minutes. 8 Both the TAB and its lawyers are entitled to have this point corrected and these reasons will stand in part as that correction. I will amend paragraph [55] of my earlier reasons so it now reads: '55. I have rejected the TAB's general argument on oppression above.' 9 I will amend paragraph [62] by deleting it. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 26 February 2016