In brief

In Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511, the Federal Court has handed down an important decision which highlights the dilemma that may be faced by an immunity applicant in complying with its duty to provide full, frank and truthful disclosure and to co-operate under the ACCC’s Immunity and Cooperation Policy for Cartel Conduct (ACCC Policy) and maintaining legal professional privilege over witness accounts provided to solicitors at an early stage in an investigation. The Federal Court’s judgment is here.

The decision is a reminder that careful consideration should be given at each stage of an internal investigation, and in communications with regulators, in relation to the purpose for which a document is being created, and on what basis any privileged document, or part of a privileged document, might be provided to any third party, including the regulator or prosecutor.

In more detail

Brief facts

The judgment relates to the criminal prosecution by the Commonwealth Director of Public Prosecutions (CDPP) of allegations of cartel conduct in relation to an institutional share placement.

In August 2015, JP Morgan Chase & Co Group’s (the Immunity Applicant) in-house and external lawyers commenced an internal review of the Immunity Applicant’s conduct in relation to the Share Placement (Internal Review). Following the grant of a “first in” marker by the ACCC, internal and external lawyers conducted interviews with the Immunity Applicant’s employees during which interview notes were created and outlines of evidence were prepared (Interview Notes and Evidence Outlines). The Immunity Applicant subsequently submitted an oral “proffer” to the ACCC and applied for and obtained conditional immunity from the ACCC and the CDPP.

During committal proceedings in 2020, the accuseds pressed the CDPP to produce documents generated during the Internal Review. The CDPP then requested the Immunity Applicant to produce the Evidence Outlines by reference to the conditions to the grant of conditional immunity which required it to “provide full, frank and truthful disclosure and co‑operation to the ACCC (including by withholding nothing of relevance) throughout the course of the ACCC’s investigation and any subsequent legal proceedings commenced by the ACCC and/or the CDPP in respect of the disclosed cartel conduct”.

The Immunity Applicant was concerned to maintain legal professional privilege but ultimately agreed, over two meetings with the CDPP, to read aloud selected passages from the Evidence Outlines. In each case the partial accounts were provided by reference to 12 identified topics and the Immunity Applicant’s advisors said words to the effect of “this is the evidence [the Immunity Applicant] expects will be given in respect of [the topic] by [the named employee] based on their first account”.

In January 2021, the CDPP served subpoenas on three members of the Immunity Applicant group for production of the Interview Notes and Evidence Outlines, among other things. The Immunity Applicant objected to inspection on the basis of legal professional privilege. No access was sought to parts of documents containing legal advice, or comments in the nature of legal advice.