Mastercard Asia/Pacific v ACCC - Implied Waiver of Legal Privilege

Original Word Document (189.7 KB) Federal Court of Australia

Mastercard Asia/Pacific (Australia) Pty Ltd v Australian Competition and Consumer Commission [2026] FCAFC 37

| Appeal from: | Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (No 3) [2025] FCA 1043 |
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| File number(s): | NSD 1652 of 2025 |
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| Judgment of: | PERRAM, WHEELAHAN and MCELWAINE JJ |
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| Date of judgment: | 30 March 2026 |
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| Catchwords: | LEGAL PROFESSIONAL PRIVILEGE – whether implied waiver of privilege is limited to the making of express or implied assertions about the content of confidential communications – whether the primary judge correctly found waiver in the conduct of serving affidavits that contained evidence to the effect that the appellants did not hold anti-competitive purposes in devising and implementing commercial transactions – held implied waiver not limited to assertions about the content of privileged communications – waiver correctly found arising from the opening of the purpose subject-matter to scrutiny.

FILING OF AFFIDAVITS – whether implied waiver of privilege can only arise or be determined when a privilege holder reads affidavits into evidence – whether the filing of an affidavit effects a waiver of any privilege over the contents of the affidavit – whether the filing of an affidavit is capable of effecting an implied waiver of privilege over other communications at the time when production of documents is ordered – held there can be implied waiver before an affidavit is read into evidence at trial – consideration of case management and the overarching purpose of civil practice as relevant to the assessment of inconsistent conduct by a privilege holder – conflicting authorities considered. |
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| Legislation: | Competition and Consumer Act 2010 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 47

Evidence Act 1995 (NSW) ss 122, 131A

Uniform Civil Procedure Rules 2005 (NSW) r 1.9

Civil Evidence Act 1968 (UK) |
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| Cases cited: | Akins v Abigroup Ltd (1998) 43 NSWLR 539

Anbu v Vulcanite Pty Limited [2015] FCA 283; (2015) 324 ALR 303

Archer Capital 4A Pty Ltd (as trustee for the Archer Capital Trust 4A) v Sage Group PLC (No 3) [2013] FCA 1160; (2013) 306 ALR 414

Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475

Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547

Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678

Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (No 3) [2025] FCA 1043

Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 2) [2015] NSWSC 994

Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (No 2) [2020] FCA 1013

Balk a nbank v Taher, The Times, 19th February 1994, [1994] 1 WLUK 564

Benecke v N ational Australia Bank (1993) 35 NSWLR 110

Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101

Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88; (2008) 246 ALR 137

Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341

Commonwealth of Australia v Temwood Holdings Pty Ltd [2002] WASC 107

Council of Bar Association (NSW) v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236

DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499

Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; 201 CLR 49

Ferella v Official Trustee in Bankruptcy [2010] FCA 766; (2010) 188 FCR 68

General Accident Fire and Life Assurance Corporation Ltd v Tanter (The Zephyr) [1984] 1 WLR 100

Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83

GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266

Grocon Group Holdings Pty Ltd v Infrastructure NSW (No 2) [2023] NSWSC 1144

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104

Hua Wang Bank Berhad v Commissioner of Taxation (No 15) [2013] FCA 1124; (2013) 217 FCR 26

Impiombato v BHP Group Ltd [2025] FCAFC 9; (2025) 308 FCR 250

In re Konigsberg (a Bankrupt) [1989] 1 WLR 1257

In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283

Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117

Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1

Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp (No.2) [1981] Com LR 138

New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543

Otsuka Pharmaceutical Co., Ltd v Generic Health Pty Ltd (No 2) [2019] FCA 2215

R v Secretary of State for Transport Ex p Factortame Ltd (Discovery) (1997) 9 Admin LR 591

Re Yuro v [2022] EWHC 2112 (Ch)

Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1336; (2005) 224 ALR 299

Sader v Elgammal [2024] NSWCA 20; (2024) 113 NSWLR 394

Sevic v Roarty (1998) 44 NSWLR 287

Standard Chartered Bank v Antico (1993) 36 NSWLR 87

Stuart v Rabobank Australia Ltd [2017] FCA 284

Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152

Thomason v Municipality of Campbelltown (1939) 39 SR (NSW) 347

Unicomb v Blais [2024] NSWSC 903; (2024) 115 NSWLR 155

Vista Maritime Inc v Sesa Goa [1997] CLC 1600

Waugh Asset Management Pty Ltd v Lynch [2010] NSWSC 197 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Commercial and Corporations |
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| Sub-area: | Economic Regulator, Competition and Access |
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| Number of paragraphs: | 131 |
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| Date of hearing: | 6 March 2026 |
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| Counsel for the Appellants: | Mr C Bannan with Ms T Epstein and Mr M Gvozdenovic |
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| Solicitor for the Appellants: | Baker McKenzie |
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| Counsel for the Respondent: | Mr J Arnott SC with Mr B Hancock and Ms J Apel |
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| Solicitor for the Respondent: | Johnson Winter Slattery |
ORDERS

| | | NSD 1652 of 2025 |
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| BETWEEN: | MASTERCARD ASIA/PACIFIC (AUSTRALIA) PTY LTD

First Appellant

MASTERCARD ASIA/PACIFIC PTE LTD

Second Appellant | |
| AND: | AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Respondent | |

| order made by: | PERRAM, WHEELAHAN and MCELWAINE JJ |
| DATE OF ORDER: | 30 March 2026 |
THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondent’s costs as taxed, assessed or otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1 The Australian Competition and Consumer Commission (ACCC) in civil penalty proceedings contends that Mastercard Asia/Pacific Pte Ltd (Mastercard Singapore) and Mastercard Asia/Pacific (Australia) Pty Ltd (Mastercard Australia) (collectively Mastercard) contravened or were involved in contraventions of ss 45(1), 46(1) and 47(1) of the Competition and Consumer Act 20 1 0 (Cth). The proceeding is listed for trial before the primary judge commencing on 13 April 2026 with an eight-week estimate.

2 This appeal concerns orders made by the primary judge on 29 August 2025, that Mastercard produce for inspection categories of documents that it claims are confidential and subject to legal professional privilege: Australian C ompetition and C onsumer C ommission v Mastercard Asia/Pacific Pte Ltd (No 3) [2025] FCA 1043 (PJ). The crux of the appeal by Mastercard is that the primary judge erred in concluding that certain paragraphs in affidavits served by Mastercard effected an implied waiver of privilege and erred in concluding that waiver operated prior to the affidavits being read.

3 For the reasons that follow, we conclude that the primary judge did not err in concluding there was an implied waiver of the content of confidential communications relevant to a matter put in issue by Mastercard. Further, his Honour was also correct to conclude that waiver at the pre-trial stage was not dependent on reading the affidavits into evidence. The appeal must be dismissed.

The proceeding in outline

4 The pleaded claim of the ACCC is extensive, but reduces to the core proposition that Mastercard, having a substantial degree of power in the market for the supply to merchants of credit card acceptance services for credit card transactions, in 2017 developed a credit leverage s trategy that was intended to discourage merchants from utilising the Eftpos payment network provided by Eftpos Payments Australia Ltd (EPAL). The strategy involved signing up merchants to strategic merchant agreements (SMA s) with Mastercard Singapore. The SMAs provided for incentives, including lower prices for credit card acceptance services, if the merchants routed their dual Mastercard-Eftpos debit card transactions through Mastercard. The purpose of the strategy is central to the case, which the primary judge summarised at PJ [13] – [15]:

The ACCC alleges that a substantial purpose of Mastercard’s credit leverage strategy was to harm, or disrupt or adversely affect the competitive process for the supply of debit card acceptance services and thereby prevent or hinder competition by, among other things, deterring merchants from acquiring debit card acceptance services from EPAL. Mastercard would thereby secure or retain a substantial proportion of debit card volume in the Mastercard network. The ACCC’s case is that Mastercard’s purpose in developing and approving the credit leverage strategy and procuring, negotiating and entering into SMA’s with merchants as part of that strategy, was to substantially lessen competition in the market in Australia for the supply to merchants of debit card acceptance services for debit card transactions.

The ACCC’s allegation in respect of the strategy and purpose that lay behind the SMAs is perhaps the central issue in the case.

In short, the essence of the ACCC’s case is that, by procuring, negotiating and entering into SMAs with various merchants with the intention of substantially lessening competition in the market for the supply of debit card acceptance services, Mastercard contravened ss 45 and 46 of the Act. While Mastercard did not dispute that it entered into SMAs with various merchants, it denied that it did so for the purpose alleged by the ACCC.

5 Delving into the purpose issue further, the pleading in the Further Amended Statement of Claim at [62] contends that a substantial purpose of the strategy was to harm, disrupt or affect adversely and thereby prevent or hinder competition for the supply of debit card acceptance services by, inter alia:

[E]nabling Mastercard to secure or retain a substantial proportion of the contestable debit card volume in the Mastercard network, even where Mastercard was offering or making available scheme fees and interchange rates for debit card transactions that were higher than the scheme fees and interchange rates that EPAL was offering or making available through Eftpos for processing transactions made using dual Mastercard – Eftpos [dual network debit cards].

6 The reference to interchange rates is to the fee set by Mastercard, which is paid by a merchant’s bank to the issuer bank of the cardholder, to compensate for the value of benefits acquired by the merchant when a transaction is conducted electronically. Mastercard does not receive the fee or any portion of it. An aspect of the SMAs is that Mastercard offered a discount on the interchange fee to the counterparty merchants. The relevant period in issue is from 6 November 2017 to 5 November 2020.

7 Mastercard joins issue with this at [62] of the Defence to the Further Amended Statement of Claim. The ACCC pleading is denied and then by positive allegations Mastercard pleads:

[It] says further that, in entering into any particular SMA with any particular merchant, Mastercard:

(i)     sought to achieve ends that varied according to the individual merchant;

(ii)     the ends that Mastercard sought to achieve included some or all of the following matters:

(A)     furthering Mastercard’s retail strategy, including by selling Mastercard services to merchants and using these services to build a mutually beneficial relationship, that also benefited issuers and acquirers;

(B)    meeting merchant expectations for SMAs that covered all Mastercard card transactions, being credit, debit and prepaid transactions;

(C)     competing with other payment schemes including Visa, Eftpos and American Express and other payment products through the value of its overall offering, including its services;

(D)     competing with Eftpos to win Mastercard DNDC card present transactions, including in circumstances where Mastercard could not process transactions using Eftpos proprietary debit cards and where Eftpos was offering discounted rates for Eftpos proprietary debit card transactions on the condition that a merchant route all or a majority of Mastercard or Mastercard and Visa, DNDC transactions to Eftpos;

(E)     assisting Mastercard Singapore to balance its interchange debit and credit rates, including with regard to the matters referred to at paragraphs 15(g) and 37(g) above;

(iii)     says further that:

(A)     Mastercard was not seeking to, and did not in fact, prevent Eftpos from competing effectively for DNDC volume or otherwise;

(B)     each SMA was entered into for a short term and many SMAs granted the merchant the right to terminate for convenience on short notice or after the first year of the SMA;

in the premises, says that Mastercard’s conduct was legitimate and pro-competitive.

8 In that pleading, the reference to 15(g) is to a plea to the effect that Mastercard does not earn revenue from credit card interchange fees and that it considered a range of factors during the relevant period when setting interchange fees, including balancing credit interchange rates to ensure, amongst other things, that it complied with the Reserve Bank of Australia credit mandates, that issuers were encouraged to issue Mastercard credit cards and provide additional benefits and services to cardholders and that Mastercard remained competitive with other payment schemes and payment products. The plea at 37(g) is concerned with the fees for debit card schemes and is generally to the same effect as 15(g).

The evidence in issue

9 Mastercard has filed and served affidavits from several witnesses, including from Richard Koh Wee Keong made 25 August 2023 and Naushaza (Bobby) Molu made 8 September 2023. Mr Koh is the Vice President, Finance, of Mastercard Singapore. Mr Molu is the former Chief Financial Officer of Mastercard Singapore.

10 Mr Koh’s affidavit includes:

1.     In this role, I was finance lead responsible for supporting business deals for the Asia/Pacific region. My responsibilities included reviewing and approving Australian deals on behalf of Mastercard Singapore, including proposed strategic merchant agreements (SMAs) involving Australian merchants. I discuss this aspect of my role further below.

17.    The role of Mastercard Singapore in reviewing and approving SMA deals with Australian merchants involved evaluating the proposed SMA deals from a finance perspective, including analysing profit and loss, considering other non-financial impacts (e.g. branding, reputation), and determining whether it was in Mastercard's interests from a commercial perspective to enter into the agreement. The strategy in relation to the SMAs, including the proposed terms of the agreement, the strategic interchange rates offered by Mastercard, transaction volume targets and choice of merchants, was proposed by Mastercard Australia.

19.    Upon reviewing the deal, I was concerned that the proposed SMA could be interpreted as Mastercard leveraging favourable interchange rates in return for receiving commercial benefits (even if indirectly). I held this concern because of my view of Mastercard's role in relation to interchange rates within the payments ecosystem, which I considered to be "neutral" in in [sic] that it generally involves Mastercard setting interchange rates for the benefit of the ecosystem as a whole. My concern was that by structuring the SMA in a way that meant that Mastercard could be seen to receive commercial benefits in exchange for providing strategic interchange rates, Mastercard could be perceived as stepping outside of this role.

1.     On or around 5 September 2017, after obtaining further information from Mastercard Australia about Australian merchants currently receiving strategic merchant rates and merchants identified in the pipeline for potential SMAs, I drafted a document to outline the considerations relevant to such SMAs (SMR Paper). A copy of my SMR Paper is at Tab 2 of Exhibit RK-1 [MCD.112.008.2044). In light of the concern I discuss above, I wanted to document the considerations relevant to the approach Mastercard Australia was proposing to take with SMAs going forward, and Mastercard Singapore's internal consensus on this type of SMA to set the parameters for future SMAs.

2.     Prior to drafting the SMR Paper, I consulted others within Mastercard Singapore, including Wayne Twomey, Teong Lee Chuah, and Bobby Molu, on my concern. I no longer recall the content of my discussions however to the best of my recollection, the SMR Paper reflected an internal consensus on the issues I raised.

23.    In the SMR Paper, I made the following statement:

Due to Mastercard 's role in managing interchange, there are potential reputational risks in relation to leveraging preferential interchange rates not just for driving acceptance and improving the payments system, but for securing marketing promotions or merchant benefits which are typically funded by Mastercard (via merchant contra) as part of obtaining brand preference and promoting cardholder usage at merchant over competing brands.

1.     In making that statement, I was not expressing any concern about Mastercard offering lower rates on credit interchange rates in order to prevent or discourage merchants from routing debit transactions through eftpos. I understand that this is part of the ACCC's case in these proceedings. However, that formed no part of my thinking and nobody ever suggested anything along those lines to me. Rather, the concern I was expressing was the one I describe above, namely whether the proposed discounting of interchange rates in a way that would benefit Mastercard was inconsistent with what I viewed as Mastercard's usual role in setting interchange rates.

2.     With certain exceptions (notably [redacted]), the SMAs entered into with Australian merchants adopted the same general structure, [redacted]. After having circulated the SMR Paper and raised my concerns, when I approved SMAs, I satisfied myself that the SMA fell within this broad framework, and otherwise approached my evaluation of the SMA from the commercial and financial perspective I describe above.

3.     At no time have I been made aware of any strategy by Mastercard Australia or Mastercard Singapore to use SMAs on credit to prevent eftpos from competing for the routing of debit transactions. I do not recall any such strategy nor was that my understanding of the purpose of SMAs with Australian merchants. At no stage did anyone from Mastercard Australia or Mastercard Singapore indicate to me that such a strategy was being pursued or that this was their purpose in negotiating or approving SMAs.

4.     I understood that the purpose of strategic agreements entered into by Mastercard with merchants (whether they included granting strategic interchange rates or not) was to increase the use of Mastercard cards. I also understood (as discussed above) that Mastercard Australia was using strategic interchange rates to obtain commercial benefits for Mastercard in some instances, by entering into SMAs with merchants [redacted].

11 At PJ [23] the primary judge noted that Mr Koh stated in his affidavit that prior to drafting the SMR Paper, he consulted with other Mastercard Singapore officers including the Mastercard Singapore General Counsel, Mr Teong Lee Chuah and Mr Molu (PJ [23], [41]). The primary judge extracted relevant portions of the SMR Paper at PJ 38:

Strategic Merchant Interchange Rates for Australia

Interchange rates are typically managed by Mastercard, whom takes on the role to ensure that the value delivered by the issuing bank and the benefits of accepting electronic payments by merchants and acquirers is equitable between the parties, and encourages the delivery of services that optimize the effectiveness of the payments system and development of innovative payment solutions.

In Australia, the interchange rate (credit, debit and prepaid) is regulated by the Reserve Bank of Australia (RBA), and a Strategic Merchant (SM) interchange rate is available to particular merchants or merchant groups as determined by Mastercard. The current rates are as follows:

[Table not reproduced]

In terms of application, the Australia team wish to tie commercial obligations from the merchants to our offering of the SM rates, where merchants deemed to deliver exceptional value to the Mastercard brand will be deemed as ‘strategic merchants’. Such arrangements will be formalized in an agreement between the parties, and where merchants who fail to deliver or maintain initiatives of strategic importance as per said agreement will cease to receive the SM rate.

There is no definitive criteria as to which merchants can be offered the SM rates or the qualifying conditions, and the Australia team can exercise their discretion on this determination. In general the team will run a business model to estimate the benefit of the SM rate to the merchant, and try to obtain commensurate value for the Mastercard brand. As an illustration of commercial commitments which may be obtained (but are not subject or limited to):

• Requirements to maintain certain Mastercard annual volumes, and continued processing

• Implementation of Masterpass

• Utilization of certain Mastercard services, such as data analytics via advisors

• Commitment to run Mastercard marketing offers such as exclusive marketing campaigns, Priceless Cities content program(s) or sponsorship related benefits

Australia market development, public policy and legal have reviewed and approved the approach, and with external regulatory lawyer advice.

Other Considerations

Due to Mastercard’s role in managing interchange, there are potential reputational risks in relation to leveraging preferential interchange rates not just for driving acceptance and improving the payments system, but for securing marketing promotions or merchant benefits which are typically funded by Mastercard (via merchant contra) as part of obtaining brand preference and promoting cardholder usage at merchant over competing brands.

There are currently 8 large strategic merchants who are offered SM rates, and there is a planned pipeline to increase that number by another 20 merchants. This is detailed in the reference section below.

As this initiative becomes more prevalent in market, this has potential to call greater scrutiny onto the selection process, and where there are significant differences in average interchange rates paid on the transactions of strategic merchants as compared to other merchants. The difference as compared to the average benchmark interchange rates could be up to 0.32% for credit and $0.0518 for debit as above (or a >50% reduction), and the RBA has also done a study in 2015 on the variance with higher estimates and has commented on the lack of transparency on interchange for non-strategic merchants.

The above has been assessed by the Australia team and viewed that there is no concern.

12 Mr Molu’s affidavit includes:

1.     In or around September 2017, I was consulted by Richard Koh, who was then the Senior Business Leader of Deal Management at Mastercard Singapore (reporting to me), in relation to Mastercard Australia's approach to offering [strategic merchant interchange rates] with [redacted].

2.     On 5 September 2017, I received an email from Richard Koh to various Mastercard employees titled 'RE: [redacted] Agreement' raising concerns in relation to Mastercard Australia's approach to the agreements with strategic merchants and attaching a paper prepared by Richard regarding this. A copy of this email chain and attachment is at Tab 5 of Exhibit BM-1 [MCD.112.008.2040] [MCD.112.008.2044]. I do not recall receiving this specific email or document. As I was new to my role at Mastercard and the payments industry at this time, I believe I relied on Richard Koh and that finance, legal and public policy personnel were aligned on the paper attached to Richard's email.

3.     Mastercard Singapore reviewed all proposed SMAs with Australian merchants before it entered into those agreements. In accordance with Mastercard Singapore's contract approval framework (discussed above at paragraph 21 above), many SMAs were delegated to members of the Deal Management team at Mastercard Singapore for review and approval. I reviewed some proposed SMAs, within the approval framework set out at Tab 2.

4.     When I reviewed an SMA on behalf of Mastercard Singapore, I reviewed the financial information for the proposed deal and also considered whether the SMA would benefit the broader payments ecosystem. By this, I mean I considered whether entering into the SMA would benefit other participants in the payments ecosystem, such as cardholders, merchants and issuers or acquirers, given that discounted interchange rates were being offered. This involved considerations such as whether offering the [strategic merchant interchange rates] would encourage more people to use Mastercard cards by, for example, making Mastercard cards a more cost effective option. The reason why a particular merchant had been identified by the Australian team was usually something in which I was interested but was not a particular focus of mine when approving a deal.

39.    In the course of preparing this affidavit I have been made aware that the ACCC alleges in these proceedings that Mastercard leveraged [strategic merchant interchange rates] on credit transactions on condition that merchants also route debit transactions to Mastercard, and that Mastercard Singapore entered into certain SMAs in order to prevent or foreclose Eftpos from competing for the debit transactions. To my knowledge, this was not a strategy of Mastercard Australia or Mastercard Singapore. I do not recall having any discussion with anyone at Mastercard to the effect that SMAs entered into by Mastercard Singapore could hinder eftpos' ability to compete with Mastercard for debit transactions. This was certainly not my objective when I approved or signed any SMAs on behalf of Mastercard Singapore.

1.     I am aware of the concept of least cost routing (LCR), that dual network debit cards issued in Australia could be processed by either of two schemes, and that there are dual network debit cards issued in Australia where the transaction could be processed by either Mastercard or the eftpos network. I am also aware that eftpos is the domestic debit payments scheme in Australia.

2.     I do not recall LCR being a focus for me in relation to Mastercard's business until around mid-2019. I recall being involved in discussions with members of the Mastercard Australia leadership team, including Rich Wormald, Wayne Twomey and Peter Slater at around the time that [redacted] decided to route debit transactions to eftpos in May 2019. I do not recall the specifics of the discussions but recall Mastercard Australia's approach to responding to LCR was a topic of discussion. Mastercard Australia remained responsible for developing strategy for the Australian market but presented to Mastercard Singapore to provide background and to explain Mastercard Australia's proposed approach to responding to LCR.

3.     My recollection of these discussions was that Mastercard Australia was focussed on how it could compete for the debit transactions in order not to lose transaction volume on the Mastercard network. I do not recall any proposal or discussion that involved preventing eftpos from being able to compete or shutting it out from competing for debit transactions. There was no discussion in which I was involved or proposal of which I was aware about preventing eftpos from being able to compete or shutting it out from competing for debit transactions.

4.     I recall being involved in discussions in relation to merchant routing in Australia with the Mastercard Australia leadership team and finance team. For me, from a finance perspective, I was interested to understand what types of transactions Mastercard was losing and the extent to which Mastercard was losing volume. In my view, if Mastercard was continuing to lose transactions, we needed to evaluate our pricing in order to remain competitive. As I explain in paragraph 24 above, this proposal would have been driven by Mastercard Australia and provided to RPIC for consideration and approval. My key focus was on competing for debit and trying to maintain Mastercard's market share. I never tried to "lock out" Visa or eftpos. From at least mid-2019 I understood that there was competition from eftpos and I expected that to continue. I did not consider that entry into an SMA by a particular merchant would mean that eftpos would be unable to compete. I expected that eftpos would continue to compete for business from that merchant.

5.     On 19 November 2019, I also sent an email to Peter Slater, Chris Chapman and Audrey Cheng titled 'RE: [redacted] Contract to be signed by MAAPL Authority' in relation to this deal. A copy of this email is at Tab 26. In my email I asked for further information on the deal and stated "looks like we are giving favourable interchange [redacted]. That doesn't smell right to me. Your thoughts?" This followed a query raised with me by Audrey Cheng, who was at that time relatively new in her role. This was raising a similar issue to that raised by Richard Koh in 2017 regarding whether it was appropriate for Mastercard to use interchange to obtain a direct commercial benefit given that Mastercard was meant to take a neutral role in relation to interchange. As I had been with Mastercard for over two years at this time, I had a better understanding of Mastercard's role in setting interchange in 2019 than I did in 2017 when this issue was previously raised. Following internal discussions, I recall that a position was reached internally that these deals were acceptable.

69.    This issue was not related to any suggestion that Mastercard could be leveraging strategic rates on credit to prevent or hinder merchants from using eftpos to process their debit transactions. I never understood that to be any part of Mastercard's strategy in relation to any SMA and I do not recall being party to any discussions where this was proposed. This was this [sic] my purpose in approving and signing the SMAs referred to above.

Reasons of the primary judge

13 His Honour commenced with an analysis of the principles applicable to implied waiver at PJ [16] – [21], most of which is uncontroversial on the appeal. His Honour referenced the well-known passage in Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29], where Gleeson CJ, Gaudron, Gummow and Callinan JJ stated:

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

14 The primary judge at PJ [17] recognised that waiver “ may arise where the privilege holder makes an express or implied assertion or brings a case which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny’”: DSE (Holdings) Pty Ltd v Int ertan Inc [2003] FCA 384; (2003) 127 FCR 499 at [58], Allsop J (as his Honour then was); Commissioner of T axation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341 at [52], [61], Kenny, Stone and Edmonds JJ; Archer Capital 4A Pty Ltd (as trustee for the A rcher C apital T rust 4A) v Sage Group PLC (No 3) [2013] FCA 1160; (2013) 306 ALR 414 at [9] – [10], Wigney J.

15 The primary judge accepted that mere relevance to an issue does not of itself amount to inconsistency; nor does the fact that the privilege holder has put in issue their state of mind: PJ [18].

16 The primary judge reasoned at PJ [19] – [20] to the effect that the making of express or implied assertions will usually be sufficient to find inconsistency but such assertions are not necessary. His Honour referred with approval to Grocon Group Holdings Pty Ltd v Infrastructure NSW (No 2) [2023] NSWSC 1144, Ball J, for the proposition that express or implied assertions about the content of a privileged communication should not be considered to be the “ultimate question in determining whether there has been an implied waiver”. Mastercard submits that his Honour erred in misunderstanding the applicable principle which it submits is confined to such assertions in this type of case.

17 The primary judge reasoned (at PJ [32]) referencing Grocon, that despite the novel approach of the ACCC, that is, the application was directed to broad categories of, rather than, specific documents, it was justifiable in the particular circumstances where the ACCC contended that waiver arose from the making of “assertions about a particular topic or subject-matter and at the same time maintaining that advice received on that topic or subject-matter remains confidential” which, in his Honour’s view may then make it “appropriate to order production of otherwise privileged documents which refer or relate to that subject-matter”: PJ [33].

18 That explains why and how the primary judge approached his findings about express or implied assertions about the content of communications in the balance of the reasons. That is, his Honour went on to make findings to the effect that Mr Koh’s evidence contained implied assertions about the content of his communications with other Mastercard officers, including confidential communications with Mr Chuah in respect of the SMAs: PJ [53] – [54]. His Honour made similar findings concerning the evidence of Mr Molu: PJ [74] – [75].

19 As we explain, this approach reveals the division between Mastercard and the ACCC on this appeal. Mastercard submits that his Honour erred when making “content” findings because his Honour failed to “apply the necessary precision when seeking to identify the relevant express or implied assertion”. From that premise, the submissions for Mastercard examine in some detail individual sentences in the affidavits to conclude that the primary judge variously read too much into the evidence, misunderstood that a reference to the fact of legal advice falls short of disclosure of the content, erroneously found that various email exchanges referenced communications with in-house counsel and generally, but wrongly, found that Mr Koh and Mr Molu did, at least impliedly, reference the content of privileged legal advice.

20 In contrast, the ACCC submissions focus on the broader issue of whether Mastercard, through service of the affidavits of Mr Koh and Mr Molu, made positive assertions about the purpose of the strategy and the SMAs in answer to the impugned purpose case, but nonetheless acting inconsistently, maintains confidentiality over privileged documents which are indisputably relevant to that issue.

21 The primary judge accepted the ACCC’s submission and found inconsistency in the conduct of Mastercard, though his Honour did not accept the extent of the waiver asserted by the ACCC: PJ [70], [76].

22 The primary judge narrowed the scope of the waiver claim from the ACCC application. Dealing first with Mr Koh, his Honour found that he had waived privilege claims in respect of (PJ [79]):

Documents created between August 2017 and November 2020 constituting or recording communications to which Mr Koh Wee Keong was a party (including communications authored by Mr Koh and communications received by or copied to Mr Koh) which (in whole or in part) record or refer to the strategy or purpose of Mastercard Australia and/or Mastercard Singapore in offering, negotiating, approving or entering SMAs (as defined in the Further Amended Statement of Claim).

23 His Honour reasoned similarly about the scope of the waiver effected by the evidence of Mr Molu, reducing it to claims in respect of (PJ [80]):

Documents created between August 2017 and November 2020 constituting or recording communications to which Mr Naushaza (Bobby) Molu was a party (including communications authored by Mr Molu and communications received by or copied to Mr Molu) which (in whole or in part) record or refer to the strategy or purpose of Mastercard Australia and/or Mastercard Singapore in offering, negotiating, approving or entering SMAs (as defined in the Further Amended Statement of Claim) and/or the likely effect of such SMAs.

24 At PJ [81] – [83], the primary judge determined that Mastercard must review the scope of the extant privilege claims to ascertain whether any documents, or parts of documents, fall within those descriptions and concluded that it was appropriate to make an order for production and inspection pursuant to r 20.32 of the Federal Court Rules 2011 (Cth).

25 The primary judge also considered whether the waiver extended to associated documents at PJ [84] – [102]. This dispute, which his Honour described as “somewhat convoluted and confusing” focused on discrete emails that were discovered and whether Mastercard had impliedly waived privilege over documents that were not produced, where by inference they related to external legal advice about the strategy and the SMAs. His Honour observed that it was “extremely difficult to resolve this dispute in the abstract” and appeared to him as “somewhat of a storm in a teacup”: PJ [94]. His Honour accepted that a waiver “brought about by the disclosure of legal advice may also extend to other related or associated documents, including for example, documents that were relied upon or underpinned the disclosed advice”: PJ [99]. Ultimately, however, his Honour was not persuaded that Mastercard incorrectly maintained privilege in respect of associated documents: PJ [102]. There is no appeal against these findings.

26 In so concluding, the primary judge rejected the submission of Mastercard that the service of the affidavits did not effect a waiver of privilege by analogy with Archer Capital at [53], where his Honour reasoned in respect of the service of unsigned statements of anticipated witness evidence that it was premature to consider whether evidence that might be given results in implied waiver. His Honour found that question can only be determined at trial when the evidence is led. In this proceeding, his Honour distinguished his own reasoning on the basis that service of sworn affidavits goes beyond the “mere” service of unsigned anticipated evidence: PJ [78]. Mastercard contends that was an error.

The appeal

27 Mastercard required leave to appeal, which the Court granted on 20 October 2025. Grounds 1 and 2 contend that his Honour erred in finding that the evidence of Mr Koh and Mr Molu effected a waiver of privilege over communications to which Mr Koh and Mr Molu were parties and which record or refer to the strategy or purpose in offering, negotiating, approving or entering into the SMAs: PJ [54], [59] – [61] and 79 and [74] – [76] and 80.

28 The drafting of these grounds masks a nuance that was made clear in submissions. Mr Bannan for Mastercard identified three issues under these grounds: (1) whether the primary judge misunderstood the principle to be applied at PJ [19], [20] and [21]; (2) in any event, whether the primary judge erred in finding that the affidavits made express or implied assertions about the content of privileged material: PJ [59] – [61], [72] – [76]; and (3) if privilege was waived, whether the orders of the primary judge were too broad.

29 Ground 3 contends error when the primary judge found that legal professional privilege was waived over the evidence referred to in Grounds 1 and 2 prior to reading the affidavits into evidence.

Grounds 1 and 2

Issue 1

30 Mastercard submits that the primary judge misunderstood the applicable principle for determining whether it had waived legal professional privilege at PJ [19] and [20]. Those paragraphs provide:

In its submissions in opposition to the ACCC’s waiver claim, Mastercard relied on a passage in Archer Capital (at [22]) that, considered in isolation, might tend to suggest that the “ultimate question” in determining whether there has been an implied waiver was “whether the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence”. It is tolerably clear, however, that the statement in question was made in the context of an attempt to reconcile the authorities concerning the circumstances in which a privilege holder might waive privilege by putting their state of mind in issue. When read in that context, and in the context of the analysis of the applicable principles that precedes the statement in [22], the statement should not be read as suggesting that relevant inconsistency can only arise where there is an express or implied assertion about the contents of a privileged communication: cf Grocon Group Holdings Pty Limited v Infrastructure NSW (No 2) [2023] NSWSC 1144 at [14 ]. Nor can that be said to be the ultimate question in determining whether there has been an implied waiver.

As is made clear in Mann v Carnell, the ultimate question is whether the privilege holder has engaged in conduct which is inconsistent with the maintenance of the confidentiality that attaches to a privileged communication. While the making of an implied assertion about the contents of an otherwise privileged communication will normally be sufficient to amount to a waiver, that is not to say that there will only be a waiver if such an assertion is found to have been made. The test is always one of inconsistency and there is no closed or categorical list of circumstances that constitute the necessary inconsistency that will result in an implied waiver. What is required is a “fact-based inquiry”: Rio Tinto at [61]; Archer Capital at [12]. Each case will turn on its own facts and circumstances and the court is required to “analyse the acts or omissions of the privilege holder that are said to be inconsistent with the maintenance of the privilege”: Rio Tinto at [45].

31 This reasoning must not be considered in isolation from PJ [21]:

The conduct of a privilege holder may be inconsistent with the maintenance of the confidentiality of a privileged communication if the privilege holder gives evidence on the same issue as the privileged communication. For example, it may be inconsistent for a privilege holder to give evidence to the effect that they were unaware of a particular fact, or that they were not told about a particular fact, or that they had a particular understanding relating to that fact, but nevertheless maintain that legal advice he or she sought or received about that fact, or which referred to that fact, remained confidential: see Grocon at [13], [33] and [37]; GR Capital at [59]. As will be seen, the ACCC contends that Mastercard’s conduct in this case gives rise to inconsistency of this general nature.

32 Mr Bannan submits that an express or implied assertion about the content of a confidential communication is necessary to waive privilege and the primary judge was in error in concluding otherwise. The assertion may be in testimonial form or where a party brings a case that depends on legal rights and therefore conveys an assertion. A well-known example of the latter is Thomason v Municipality of Campbelltown (1939) 39 SR (NSW) 347, a claim by a widow of the deceased to recover compensation for the negligence of the employer when she had earlier elected to receive statutory compensation in lieu of a common law claim. She made the election after consulting her solicitor. Her election was put in issue. It was held that she had waived privilege and was properly cross-examined on the advice provided before she made the election. This is not a case of that type.

33 Mr Bannan’s submission emphasised that in this case the correct approach begins with this Court’s decision in Rio Tinto which concerned an appeal from a taxation objection decision pursuant to s 14ZZ of the Taxation Administration Act 1953 (Cth). The Commissioner had disallowed objections to assessments relating to franking account assessments. The Commissioner was obliged by certain provisions of the Federal Court Rules 1979 (Cth) to file a statement of facts, issues and contentions. In doing so, the Commissioner put in issue the state of mind of relevant officers. In subsequent correspondence in answer to a request for particulars the Commissioner referenced legal advice and claimed privilege. Sundberg J, at first instance heard a de novo application to review the decision of a registrar. Sundberg J’s decision at first instance is reported: Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1336; (2005) 224 ALR 299. His Honour found implied waiver and ordered production. The Commissioner sought leave to appeal. The Court granted leave but dismissed the appeal. At [52], following a comprehensive review of the authorities, the Court identified a category of case of implied waiver where the privilege holder makes an assertion about the content of a communication:

These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.

34 To the same effect see [61], [65] and [72]. This is a type of implied waiver that is well understood. Amongst other authorities see Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [26] – [28], [36]; Council of Bar Association (NSW) v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 at [48]; GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 at [55], [57(2)] and DSE at [61].

35 Mr Arnott SC for the ACCC approaches the issue somewhat differently. His submissions commence by emphasising PJ [16] where the primary judge (by reference to Mann v Carnell at [29]) reasoned that:

One of the essential features of a communication that is the subject of legal professional privilege is that the communication was and remains confidential. There will be an implied waiver of that privilege where the conduct of the client is inconsistent with the maintenance of that confidentiality.

36 From that premise, Mr Arnott submits that what occurred in this matter was implied subject-matter waiver. That is, on service of the affidavits of Mr Koh and Mr Molu, confidentiality in the material therein was lost in respect of the positive assertions made about the purposes of the scheme and the SMAs with the consequence that the statements therein opened to scrutiny any communications, including those subject to claims for legal professional privilege. The purposes deposed to comprised two topics. One, that no internal view was expressed by any Mastercard officer to the effect that the strategy to be implemented through the SMAs had an anti-competitive purpose. The other, that it formed no part of the thinking of Mr Koh or Mr Molu that the scheme and the SMAs were proposed and implemented to deter or prevent merchants from routing debit transactions through Eftpos.

37 The submission continues that the principle identified in Mann v Carnell is not limited to cases of express or implied assertions about the content of confidential communications. Rather, the focus of the inquiry is upon the conduct of the privilege holder as inconsistent with the maintenance of the confidentiality claim. Inconsistent conduct may take many forms, not limited to express or implied assertions about the content of privileged communications. The question in this case is whether Mastercard by its conduct has “broken the wall of confidentiality”. By serving the affidavits, Mastercard opened to scrutiny all communications within the relevant period concerning the purpose issue because it is inconsistent to make such assertions in oral evidence but withhold relevant underlying documents whereby the evidence may be tested.

38 On that submission, the factual question for the primary judge was whether that is the effect of the evidence, which is the more limited analysis undertaken by the primary judge where he made findings about the content of confidential communications at PJ [54] for Mr Koh and [74] for Mr Molu.

39 The submission continued that the inquiry is narrowed by two further matters that are not in issue. Mastercard made discovery of documents by list, arranged according to agreed categories and claimed legal professional privilege over some: PJ [1]. Therefore, the privileged documents are relevant. And, since the primary judge made the orders, Mastercard has identified 60 emails as potentially relevant, which reduces to 10 discrete emails. Thus, questions of relevance and fishing do not arise.

40 It should be understood that Mr Arnott several times in oral submissions disavowed that this is a case where the issue is a party’s state of mind; rather, the case is about the ability of Mastercard to shield from scrutiny communications related to the subject-matter claims of Mr Koh and Mr Molu that they did not have any communications within the relevant period which indicated to them that Mastercard’s purpose in negotiating or entering into the SMAs was to prevent Eftpos from being able to compete in the market. The distinction is a fine one which Mr Arnott framed in oral submissions as:

What you cannot do, consistently with the principles in Mann v Carnell, is to, in effect, approbate and reprobate by saying, “This court should find that my state of mind back then was X, but any communication recording my state of mind at that time cannot be produced.” And that is the – that is conduct that is inconsistent with that party maintaining confidentiality.

41 Mr Arnott rounded out the submission that Mastercard, by withholding communications at the time relevant to the affidavit statements of Mr Koh and Mr Molu, is acting inconsistently informed by considerations of fairness because the evidence cannot be tested against contemporaneous communications.

42 In our view the primary judge did not misunderstand the principle to be applied in this case.

43 His Honour at a pre-trial stage was concerned to apply the common law principles: Arup at [24]. The statement of principle in Mann v Carnell at [29] requires close attention to the circumstances to determine whether the conduct of Mastercard is inconsistent with maintenance of the privilege. It is a fact sensitive inquiry where the focus is on the particular conduct of Mastercard.

44 Mann v Carnell does not categorise or limit the types of cases where inconsistency informed by considerations of fairness will arise and reasoning from the facts of one case to another is of limited utility: “The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance”: Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 95, Deane, Dawson and Gaudron JJ. Decided cases are examples of the application of the principle in Mann v Carnell. Mastercard is correct to submit that express or implied assertions about the content of privileged communications is a category of case where implied waiver has been found, though mere reference to the fact of legal advice is unlikely to amount to disclosure of its content. It is not, however, with respect to the submission, correct that this is the only circumstance where implied waiver operates.

45 This is illustrated by the state of mind cases where a party makes allegations which raise the issue of subjective decision-making and hence open for scrutiny communications relevant thereto. Examples are pleas of reliance, undue influence and mistake. Allsop J comprehensively reviewed this category in DSE. State of mind cases raise different issues where assertions about the content of confidential communications may not be required to find implied waiver: DSE at [59] – [61], [85] – [87]. Why is explained by Wheeler J in Commonwealth of Australia v Temwood Holdings Pty Ltd [2002] WASC 107 at 10:

On the other hand, a party may necessarily put its state of mind in issue in the proceedings by, for example, pleading reliance upon some representation or other or by seeking rectification of the contract for mistake; or a state of mind may be put in issue by some evidentiary assertion which is clearly relevant to the issues between the parties. In these latter types of case, fairness clearly requires the waiver of the privilege in relation to legal advice which may have contributed to that state of mind. It is to be noted, however, that it is the conduct of the party who possesses the privilege which is capable of waiving it. It is not apparently open to another party to litigation to force waiver of a party's legal professional privilege by making assertions about, or seeking to put in issue, that party's state of mind.

46 However, as further explained by Allsop J in DSE, joining issue on the pleading is unlikely of itself sufficient: [122].

47 Returning to cases of assertions about the content or substance of privileged communications and the reasons at PJ [20], Mastercard submits this is contrary to Rio Tinto at [52] which has been referred to with approval by this Court in Arup at [26] – [28] and in New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543 at [58], Kenny, Stone and Middleton JJ. We do not accept the submission. In Rio Tinto at [52], the Court went no further than extracting a summary principle illustrative of the cases considered, commencing with Mann v Carnell at [43] and concluding with Benecke v N ational Australia Bank (1993) 35 NSWLR 110 at [51]. The Court went on to consider additional authorities, including a detailed analysis of the differences between the majority and minority reasons in Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152, to conclude at [60] that “too much” had been made of the differences between Branson and Lehane JJ (in the majority) and Beaumont J (in dissent) in the search for a “statement of general principle … when in truth the decision turned on its particular circumstances”, which was further emphasised at [61]:

Both before and after Mann, the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence. In DSE at [58], Allsop J put the matter somewhat more descriptively, saying waiver arises when “the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the Act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication”.

48 Thus, the Court did not confine the inconsistency principle to cases where the privilege holder makes express or implied assertions about the content of communications. Cases of that type are illustrative of the application of the principle, not exhaustive of it.

49 Arup is distinguishable as a state of mind case and, in any event, the reliance by Mastercard on the reasons at [26] – [28] does not support the submission. Arup was a pleading case about misleading or deceptive representations in a cross-claim to the effect that representations were made to Arup about a contractual limitation of liability provision. Arup pleaded that based on the representations it had a reasonable expectation that if counter-parties were of the view that they were not bound by the limitation of liability clause then that fact would have been disclosed to it. The only conduct that was contended as amounting to waiver by Arup was its plea in the cross-claim.

50 The Court at [26] referenced Rio Tinto at [52] and stated at [28] that the “correct approach” was succinctly stated by Yates J in F e rella v Official Trustee in Bankruptcy [2010] FCA 766; (2010) 188 FCR 68 at [65] as follows:

However the question is not simply whether the holder of the privilege has put that person’s state of mind in issue but whether that person has directly or indirectly put the contents of the otherwise privileged communication in issue: see [Rio Tinto] at [65]. Indeed, even the fact that the holder of the privilege makes clear that the advice was relevant or contributed to a particular course of conduct would not be sufficient to waive the privilege unless, possibly, the contents of the legal advice (and not merely the fact of the advice) are specifically put in issue by relying on the contents of the advice to vindicate a claimed state of mind: [Rio Tinto] at [67].

51 It should be understood that Yates J was concerned with the pleading of a defence which it was said exposed to scrutiny any legal advice received by the respondent relevant to why it was unable to take the steps that it pleaded it could not take to annul the bankruptcies or otherwise approach the Court for judicial advice on matters in issue. His Honour found that the defence did not put the content of privileged communications in issue. Thus, his Honour was not concerned to examine how the Mann v Carnell principle may operate in other circumstances.

52 Returning to Arup, the Court next observed at [29] that the focus of the inquiry is on the identification of inconsistent conduct with the maintenance of confidentiality “informed by considerations of forensic unfairness”. At [30], the Court approved the statement of Allsop J in DSE at [58], but noted it is not to be “treated as a statutory formulation”. There is nothing in the reasons of the Court that confines the application of the principle to assertions about the content of communications.

53 Betfair is a completely different case where the issue concerned the legal professional privilege between the State of New South Wales and the Office of Parliamentary Counsel. The State was not party to the proceeding between Betfair and Racing NSW and Harness Racing NSW, but intervened to claim public interest immunity and legal professional privilege over documents in the possession of those regulatory bodies. The primary issue on appeal concerned whether the State could claim legal professional privilege over communications which formed the basis of drafting instructions to Parliamentary Counsel. The Court concluded that it could, which then required consideration of a notice of contention to the effect that there had been a waiver by disclosure of the documents to a Parliamentary working group. The waiver argument depended upon accepting that a failure by the State to impose a use restraint amounted to waiver: [48]. The Court rejected that argument as not amounting to inconsistent conduct: [54] – [57]. Towards the end of the reasons the Court noted that at times the argument “came close to a claim for issue waiver”, which it rejected on the ground that the State did not put the content of the privileged communications in issue (at [58]) by reference to Rio Tinto at [52], [61] and [72] – [74]. The Court was not required to determine whether there can only be implied waiver if the content or substance of a communication is asserted.

54 Nor do we consider that the other principal authorities relied on by Mastercard stand for the proposition that an implied assertion about the content of a privileged communication is necessary to establish waiver. Bar Association concerned a complaint against a legal practitioner concerning his failure to lodge taxation returns, the operation of a statutory provision that the Association submitted entitled it to withhold documents from production and, if so, whether there had been a waiver of that right. Hodgson JA gave the principal judgment with which Campbell JA and Handley AJA agreed. The Court found that waiver did not operate: [43] – [44]. However, Hodgson JA alternatively reasoned that if wrong in that conclusion, the conduct relied on fell short of waiver at common law: [45]. In explaining why, Mastercard relies on the reasons at [48], where in part his Honour stated:

It is not enough to bring about a waiver of client legal privilege that the client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client’s state of mind, in circumstances where there were confidential communications likely to have affected that state of mind.

55 The passage does not support the submission. The sentence commencing: “What would involve”, is an example of relevant inconsistency and is not an exhaustive statement of principle. Moreover, at [49] Hodgson JA concluded there was no inconsistency on the facts because the forensic unfairness relied on went no further than an assertion by the barrister that the documents in question could assist in his defence to the charge of professional misconduct as relevant to a submission that the Bar Association was aware of the matters presently alleged for a considerable period of time but did not treat them as amounting to professional misconduct. That was insufficient when the Bar Association in the complaint had made no assertion about the content of the documents of which production was sought.

56 GR Capital concerned a judgment entered by consent for money lent. Later, the debtors by motion applied for the judgment to be set aside contending that the transaction was illegal. The judgment creditor obtained the issue of a subpoena addressed to the former solicitors of the debtor to produce documents relevant to advice given about the proceedings. The debtors applied to set aside the subpoena on the ground that the documents were subject to legal professional privilege. The primary judge concluded that there had been a waiver, but also that the subpoena was too broad and therefore made orders requiring the production of a more limited class of documents. The Court of Appeal (Macfarlan JA, McCallum JA and Simpson AJA agreeing), allowed the appeal, concluding that the primary judge applied the wrong test, being relevance rather than inconsistency: [58]. Macfarlan JA at [55] observed that authorities post Mann v Carnell “direct particular attention to whether an express or implied assertion has been made ‘either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny’”. His Honour added: “This approach appears ultimately to derive from that of Hodgson J in Standard Chartered B ank v Antico ” (1993) 36 NSWLR 87. Antico is referenced at [24] of GR Capital where relevantly Hodgson J said at 87:

If a party, by pleadings or evidence, expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, then fairness to the other party may mean that this assertion has to be taken as a waiver of any privilege attaching to the communication.

57 Antico pre-dates Mann v Carnell, but that aside there is nothing to suggest that Hodgson J was concerned to exhaustively state the principle, rather than to illustrate how it may operate.

58 Returning to GR Capita l, Macfarlan JA at [57] drew from the authorities several propositions including the second that Mastercard emphasises:

Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore “laid open the communications to scrutiny”, assists in ensuring that the court’s focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.

59 His Honour did not there state that an assertion about the content of a confidential communication is necessary; rather, it “assists” in maintaining the focus of the inquiry on inconsistency. Further, as his Honour observed in part in his fourth proposition at [57]:

The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated.

60 It should also be stated that these types of cases are not limited to assertions about the content of privileged communications: they extend to the gist of a communication, a conclusion or a position, which serves to emphasise that waiver is always fact specific. Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 concerned a freedom of information request and the exemption for legal professional privilege at s 42(1) of the Freedom of Information Act 1982 (Cth) relating to advice provided by the Australian Government Solicitor. Tamberlin and Gyles JJ (Emmett J dissenting) concluded that there had been a voluntary disclosure of the gist or conclusion of the legal advice amounting to waiver. Tamberlin J at [13] reasoned that disclosure of the reasoning of a privileged communication is unnecessary to establish waiver, in part observing:

Various expressions are used in the formulation of principles relating to waiver of legal professional privilege, such as references to ‘the substance’, ‘effect’, or ‘content’ of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed.

61 We next address Grocon and the reliance placed on it by the primary judge at PJ [32] – [33] and [55] – [57]. The case concerned a claim by Grocon for damage suffered arising from unsuccessful participation in a competitive tender process. It framed claims for misleading and deceptive conduct and breach of contract. Grocon made discovery and claimed legal professional privilege over a large number of documents. By motion, Infrastructure NSW sought production of those documents, contending implied waiver because the misleading conduct case raised the issue of reliance on the representations. The representations concerned the right to develop a parcel of land with sight lines to Sydney Harbour and the meaning and effect of sight lines clauses in the tender documentation. A director of Grocon, Mr Grollo, made an affidavit that stated he was unaware of the effect of the clause on the ability to develop the land (a material restriction) and if he had been made aware it would have altered Grocon’s position in respect of the development: [32].

62 Ball J concluded that waiver was made out. At [33] his Honour found that the effect of this evidence was an implied assertion that no-one told Mr Grollo that the clause imposed development restrictions and therefore it was inconsistent for him to make that assertion whilst maintaining a claim for privilege over legal advice concerning that subject-matter. Another witness, Mr Easy, also provided an affidavit. He was employed as the in-house General Counsel of Grocon. His affidavit traversed what Grocon could have done if the effect of the clause had been disclosed and as to his subjective belief: [35]. On this evidence, Ball J concluded there was an implied waiver, limited to communications relating to the specific matters identified in his evidence: [38]. In reasoning to that conclusion, his Honour did not consider it necessary to find that Mr Easy had made an express or implied assertion about the content of privileged communications. Relevantly, his Honour found at [37]:

In my opinion, by giving the evidence of the views he has formed on particular matters, Mr Easy has waived privilege in any communication that records his views on those matters. It does not matter that Mr Easy may not be understood as making an express or implied assertion about the existence or content of legal advice. What is inconsistent is for Mr Easy both to express a view on a particular matter (such as what view someone formed, what someone needed to know or would do, whether one transaction was more favourable than another, whether a particular event was likely and the meaning or effect of a particular contract or contractual right or obligation) and to assert that communications recording his views on those matters remain confidential. The fact that the relevant communications may have consisted of legal advice or were made for the purpose of Grocon obtaining legal advice does not alter the position.

63 Grocon assists in understanding why the primary judge accepted the ACCC subject-matter waiver submission which his Honour explained at PJ [32] – [33]. In part, his Honour stated:

While it may be accepted that the ACCC’s case in respect of waiver is somewhat novel, in that it is directed at broad categories of documents, rather than specific documents, in respect of which Mastercard has made, or may have made, privilege claims, its case in that regard is not entirely unique. A similar case of implied waiver was successfully mounted in Grocon. Moreover, in my view the ACCC’s approach is justified by the particular circumstances of this case. As has already been noted, Mastercard’s descriptions of the documents over which it claims privilege are, to say the very least, scant and unhelpful. It is difficult to see why issues arising from the deficiency of Mastercard’s relevant document descriptions should be visited upon the ACCC.

More significantly, where the inconsistency resulting in the waiver is said to arise from the privilege holder making assertions about a particular topic or subject-matter and at the same time maintaining that advice received on that topic or subject-matter remains confidential, it may be appropriate to order production of otherwise privileged documents which refer or relate to that subject-matter. Justice Ball expressed a similar view in Grocon in circumstances not materially dissimilar to the circumstances of this case.

64 The primary judge at PJ [57] found the reasoning of Ball J to be “compelling and generally applicable”. Mastercard submits that the reasoning is distinguishable because of the legal capacity in which Mr Easy acted in giving transactional advice and in the views expressed in his affidavit based on his understanding of the contractual terms. It is further submitted that Grocon is inconsistent with Rio Tinto.

65 In our view Grocon is illustrative of the application of the fact specific evaluative assessment that is necessary to reach a conclusion conformably with the inconsistency analysis required by Mann v Carnell. The factual difference emphasised by Mr Bannan is not a distinction at the level of legal principle. There is but one principle illustrated in its application by identification of types of conduct that may rise to inconsistency in the maintenance of a privilege claim. The categories are not exclusive nor exhaustive. Express or implied assertions about the content of privileged communications may expose inconsistency as required by Mann v Carnell but are not necessary. The inquiry must focus on the particular conduct in issue in all the circumstances as inconsistent with maintenance of the confidentiality which the privilege protects. The circumstances of individual cases will vary. Reasoning only by reference to cases which have found waiver in the making of implied assertions about the content of otherwise privileged communications deflects from the inconsistency principle and is likely to lead to error.

66 This analysis demonstrates that the primary judge was correct at PJ [20] not to confine inconsistency in these types of cases to conduct by the privilege holder that involves an express or implied assertion about the content of a privileged communication. The inconsistency principle is capable of application to a case, such as the present, where the privilege holder puts in issue a subject-matter by making positive assertions whilst maintaining that communications on the subject-matter remain confidential. Thus, the primary judge was also correct to accept that implied waiver may be found in this case by reasoning similarly to the approach in Grocon.

Issue 2

67 Mastercard maintained on a detailed analysis of the evidence that it was necessary for the primary judge to find that Mr Koh and Mr Molu made express or implied assertions about the content of otherwise privileged material. Mastercard highlighted that the primary judge made findings to the effect that Mr Koh and Mr Molu made assertions about the contents of communications with other Mastercard officers though, on the Mastercard submission, in no instance did the deponents make any assertion about the content of privileged legal advice. For the reasons given in resolving issue 1, that was not necessary to find implied waiver in this case. Consequently, we do not need to consider the granular detail of the Mastercard arguments concerned with whether individual sentences in the affidavits make assertions about the content of privileged communications. Nonetheless, the arguments of Mastercard and the ACCC overlap on the issue of implied waiver by assertions about the purpose subject-matter and each invite close attention to whether the primary judge correctly found waiver by the making of assertions of that type so as to expose all relevant communications relating thereto to scrutiny.

68 Dealing first with Mr Koh, the critical findings of the primary judge begin at PJ [52] – [53]:

In considering whether the filing and service of Mr Koh’s affidavit has resulted in an implied waiver of privilege, the critical statements made by Mr Koh in his affidavit are: (at [24]) “that [Mastercard was offering lower rates on credit interchange rates in order to prevent or discourage merchants from routing debit transactions through eftpos] formed no part of my thinking and nobody ever suggested anything along those lines to me”; (at [34]) that “[a]t no stage did anyone from Mastercard Australia or Mastercard Singapore indicate to me that such a strategy [a strategy of using SMAs on credit to prevent eftpos from competing for the routing of debit transactions] was being pursued or that this was their purpose in negotiating or approving SMAs”; and (at [35]) “I understood that the purpose of strategic agreements entered into by Mastercard with merchants ... was to increase the use of Mastercard cards”.

Those statements and assertions must be considered in the context of Mr Koh’s position and responsibilities at Mastercard Singapore, as well as the balance of the evidence in Mr Koh’s affidavit. In broad terms, Mr Koh deposed that, in performing his task of considering, evaluating and approving proposed SMAs, he communicated with many other officers of Mastercard, including in-house lawyers. Mastercard has claimed legal professional privilege in respect of several communications which were authored or received by Mr Koh in that context.

69 Mastercard does not submit that his Honour’s focus on these aspects of Mr Koh’s evidence was inaccurate, incomplete or insufficient. From there, the primary judge concluded that Mr Koh’s evidence amounted to an implied assertion about the content of his communications with other officers of Mastercard at PJ [54]:

In my view, the broad assertions by Mr Koh in his affidavit to which reference has just been made amount to express or implied assertions about the contents of his communications with other Mastercard officers, including in-house counsel, in respect of the SMAs. Those assertions included that those communications did not indicate to him, or advert to the fact, that Mastercard’s purpose in negotiating and entering the SMAs was or included “discourag[ing] merchants from routing debit transactions through eftpos” or “prevent[ing] eftpos from competing for the routing of debit transactions”, and that the communications provided the basis for his understanding that the purpose of the agreements was simply to increase the use of Mastercard cards. The making of those assertions about the contents of the communications in my view lays those communications open to scrutiny (cf DSE at [58]) and puts the contents of those communications in issue (cf Rio Tinto at [52]) in a way that is inconsistent with the maintenance of confidentiality in those communications, at least insofar as they concern or address those subject-matters. It is, in short, inconsistent for Mr Koh to make assertions of the kind he made and for Mastercard at the same time to maintain that otherwise privileged communications sent or received by Mr Koh that addressed the subject-matter of those assertions remained confidential.

70 Similarly, with respect to the evidence of Mr Molu, the primary judge summarised his evidence at PJ [72] – [73]:

In considering whether the filing and service of Mr Molu’s affidavit has resulted in an implied waiver of privilege, the critical statements made by Mr Molu in his affidavit are: (at [39]) “[t]o my knowledge, this [the allegation that Mastercard entered into certain SMAs in order to prevent or foreclose eftpos from competing for debit transactions] was not a strategy of Mastercard Australia or Mastercard Singapore”; (at [39]) “I do not recall any discussions with anyone at Mastercard to the effect that SMAs entered into by Mastercard Singapore could hinder eftpos’ ability to compete with Mastercard for debit transactions” and “[t]his was certainly not my objective when I approved or signed any SMAs on behalf of Mastercard Singapore”; (at [42]) “I do not recall having any proposal or discussion that involved preventing eftpos from being able to compete or shutting it out from competing for debit transactions” and “[t]here was no discussion in which I was involved or proposal of which I was aware about preventing eftpos from being able to compete or shutting it out from competing for debit transactions”; (at [43]) “I never tried to ‘lock out’ ... eftpos ... I understood that there was competition from eftpos and I expected that to continue” and “I did not consider that entry into an SMA by a particular merchant would mean that eftpos would be unable to compete”; (at [68]) “[f]ollowing internal discussions, I recall that a position was reached internally that these [SMA] deals were acceptable”; and (at [69]) “I never understood that [the allegation that Mastercard was leveraging strategic rates on credit to prevent or hinder merchants from using eftpos to process their debit transactions] to be any part of Mastercard’s strategy in relation to any SMA and I do not recall being party to any discussions where this was proposed” and “[t]his was this [sic] my purpose in approving and signing the SMAs referred to above”. I should note that, when those statements are read in context, it is tolerably clear that Mr Molu’s reference to “discussions” included discussions via email.

Those statements and assertions by Mr Molu must be considered in the context of Mr Molu’s senior position and responsibilities, as well as the balance of the evidence in his affidavit. The overall effect of Mr Molu’s affidavit evidence was that, in performing his task of approving proposed SMAs, he communicated with many other officers of Mastercard, including in-house lawyers, and that his knowledge or understanding of the purpose and effect of the SMAs was derived from those communications. Mastercard has claimed legal professional privilege in respect of several communications which were authored or received by Mr Molu in that context.

71 Mastercard makes no complaint about this summary. From there, the primary judge concluded at PJ [74]:

In my view, the broad statements made by Mr Molu in his affidavit to which reference has just been made amount to express or implied assertions about the contents of his communications with other Mastercard officers, including in-house lawyers, in respect of the SMAs. Those assertions included that the communications did not indicate to Mr Molu, or advert to the fact, that Mastercard’s purpose in negotiating and entering the SMAs, and the likely effect of the SMAs, included “preventing eftpos from being able to compete or shutting it out from competing for debit transactions”, or preventing or hindering merchants from using eftpos to process their debit transactions. Mr Molu also expressly or impliedly asserts that the communications provided the basis for the internal “position” that the SMA “deals were acceptable” and informed his understanding or belief that “entry into an SMA by a particular merchant” would not “mean that eftpos would be unable to compete”. The making of those assertions about the contents of the communications to which Mr Molu was a party in my view lays those communications open to scrutiny and puts the contents of those communications in issue in a way that is inconsistent with the maintenance of confidentiality in the communications, at least insofar as they concern or address those subject matters. It is inconsistent for Mr Molu to make assertions of the kind he has made and for Mastercard at the same time to maintain that otherwise privileged communications sent or received by Mr Molu that address the subject-matter of those assertions remain confidential.

72 Mastercard submits that the findings at PJ [54] and [74] bespeak of error. At most, the witnesses had discussions with in-house personnel, including the in-house counsel, which discussions may have been relevant to their respective states of mind. That does not disclose the fact of relevant legal advice and even if there were such advice, there can be no implied waiver absent reliance: Rio Tinto at [67], [71] – [72]; Arup at [28]; GR C apital at [57(3)]; Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (No 2) [2020] FCA 1013 at [31], Allsop CJ. However, as we have explained, it was not necessary for the primary judge to go that far. His Honour was concerned with inconsistent conduct in opening confidential communications concerning the asserted purposes to scrutiny.

73 Mastercard further submits that the primary judge erred in finding that it was sufficient for the witnesses to make assertions about their respective states of mind if there were confidential communications likely to have affected the state of mind: B ar Association at [48]. That Mr Koh consulted with Mr Chuah about his concerns prior to drafting the SMR Paper does not amount to an assertion about the content of his communications and does not otherwise put that in issue. The reference to legal approval in the SMR Paper takes the matter no further. Similarly, that Mr Molu may have been a party to conversations during which legal advice was provided does not make any assertion about the content of that advice and there is no evidence that he relied on it. Finally, informed overall by notions of fairness, the fact that the ACCC has put in issue the state of mind of Mastercard in a civil penalty proceeding weighs heavily against a finding of waiver. Witnesses for Mastercard “ought to be able to say that no person ever said to them they wanted to foreclose competition without a finding of waiver in relation to any privileged communications that make any reference to strategy or purpose”.

74 In submissions for the ACCC, Mr Arnott maintained that the inconsistent conduct flows from the service of the affidavits containing evidence to the effect that there were no communications in the relevant period concerning the subject-matter of the impugned purposes. By proceeding in that way, Mastercard laid open to scrutiny any relevant communications, including those subject to its claims of legal professional privilege.

75 The resolution of the competing submissions turns on the conduct of Mastercard and the findings of the primary judge at PJ [54] and [74] which we have set out above. Dealing first with Mr Koh, at [17] of his affidavit he explains the role of Mastercard Singapore as responsible for reviewing and approving the arrangement from a financial perspective and to determine whether proceeding with it was in the commercial interests of Mastercard. He was concerned that the proposed SMAs could be interpreted as an attempt to leverage favourable interchange rates in return for the receipt of commercial benefits: [19]. He therefore set about drafting the SMR Paper. He consulted, amongst others, Mr Chuah: [22]. Although he is unable to recall the content of his discussions, they were reflected in the SMR Paper; relevantly the potential reputational risk. He had further engagement with Mastercard personnel, but “at no time” was he “made aware of any strategy by Mastercard Australia or Mastercard Singapore to use SMAs on credit to prevent eftpos from competing for the routing of debit transactions”. His evidence is also that “at no stage” did anyone else from within Mastercard indicate to him that such a strategy “was being pursued or that this was their purpose in negotiating or approving SMAs”.

76 Mr Bannan submits that Mr Koh does not say that he had any discussions with a lawyer on the topic of whether the lawyer was seeking to achieve an anti-competitive purpose, no positive evidence was given on that and hence, the primary judge was wrong to construct an assertion about the content of legal advice. He submits that this is quintessentially an example of the reference to the fact of legal advice, not its content. We do not agree. The submission does not address the subject-matter inquiry. That is, the effect of his evidence that at no time was he aware of any strategy to use the SMAs to prevent or hinder competitive conduct by Eftpos and further at no stage did anyone else from Mastercard indicate to him that that was their purpose.

77 Mr Bannan’s submissions in considerable detail interrogated individual sentences in the affidavit of Mr Koh and the SMR Paper to conclude that his concern was reputational, not the anti-competitive purpose or effect of the strategy or the SMAs and that was the extent of his consultation and communication with Mr Chuah. The primary judge is then criticised for recasting the evidence at PJ [54] that no person within Mastercard conveyed to him any purpose of hindering competition by routing debit card transactions through the Mastercard network. His Honour is further criticised for misunderstanding Mr Koh’s evidence at [35] of his affidavit. His evidence was that he understood the purpose was to increase the use of Mastercard cards by implementing strategic interchange rates with commercial benefits for merchants. The primary judge wrongly found that purpose was informed by his understanding that no one in Mastercard adverted to any anti-competitive purpose. Another submission is that it was not open to the primary judge to link together the evidence of Mr Koh with other relevant background material and by proceeding in that way his Honour’s analysis lacks the precision which is necessary to find inconsistent conduct.

78 We reject the submissions. At PJ [54], the primary judge drew together various aspects of the evidence of Mr Koh. It was open to his Honour to link, in the second sentence, that the assertions included communications that did not indicate to him that the purpose was to discourage merchants from routing debit transactions through Eftpos with Mr Koh’s understanding that the purpose was simply to increase the use of Mastercard cards. In our view, the primary judge was correct to find that these were implied assertions about the content of the communications with all officers of Mastercard in the relevant period with the consequence that Mr Koh opened that subject-matter to scrutiny. The primary judge was concerned to determine whether all of the conduct of Mastercard evidenced inconsistency with the maintenance of confidentiality in contemporaneous communications within the relevant period which is the focus of the findings at PJ [54] and the conclusion that the subject-matter communications were laid open to scrutiny. The primary judge did not proceed narrowly by confining Mr Koh’s evidence to reputational risks. That approach was correct because the effect of the evidence is that Mr Koh makes implied assertions that there were no communications within the relevant period that disabused him of his view about the purpose of the scheme and the SMAs which is a positive assertion about the communications. This evidence opened for consideration the category of communications that Mr Koh relies on as supporting his purpose evidence. The inconsistency flows from the service of an affidavit that contains positive evidence as to lawful purposes and whether there are documents that record views consistently with that evidence.

79 We illustrate that point by reference to a document identified by Mr Arnott in submissions, an internal email of 10 April 2017, which Mastercard has produced with redactions. It concerned the SMA strategy for a major Australian retailer. The document is subject to confidentiality orders (which explains why we redact part of it). It was sent and copied by Mr Koh to multiple recipients and includes:

My query to the team was whether it is acceptable to provide the SM1 rate in return for commercial commitments from [redacted], as the team intends to leverage this as part of the deal. Is there any restriction?

80 The reply is entirely redacted on the basis that Mastercard claims legal professional privilege. One of the persons who were copied into the email was an internal lawyer. This is an example of a privileged communication within the relevant period that, according to the affidavit of Mr Koh at [34], did not cause him to be aware of any strategy that the use of SMAs was for the purpose of preventing Eftpos from competing for the routing of debit transactions. The privilege claim is inconsistent with Mastercard’s conduct in serving the affidavit of Mr Koh where it is clearly unfair to withhold from scrutiny by the ACCC the response to Mr Koh’s question.

81 For the same reasons his Honour was correct to make the additional finding at PJ [59] which in part was:

It may be accepted that Mastercard cannot be taken to have waived privilege merely by merely joining issue with the ACCC’s allegation that it had a particular purpose in negotiating and entering the SMAs. Mr Koh’s evidence, however, goes well beyond simply joining issue with the ACCC’s allegation in that regard. In summary, and as discussed earlier, Mr Koh asserts, in effect, that nobody told him that Mastercard had the impugned purpose and thereby asserted, expressly or impliedly, that the communications between him and others at Mastercard, including those that may have involved in-house legal advisers, did not indicate to him that Mastercard had that purpose. It is the inconsistency of that act and the maintenance of confidentiality in communications which address that subject-matter that give rise to the waiver, not the ACCC’s act in alleging a state of mind, or Mastercard’s mere act of joining issue with that allegation. As Hodgeson (sic) JA said in Bar Association v Archer at [48], “it may be sufficient that the client is making assertions about the client’s state of mind, in circumstances where there were confidential communications likely to have affected that state of mind”. This is such a case. That conclusion is fortified by the fact that it is readily apparent Mr Koh was likely to have received otherwise privileged communications that informed his state of mind and understanding in respect of the purpose of the SMAs, and that Mr Koh’s state of mind and understanding in that regard is likely to be a particularly significant issue in this case.

82 Mastercard criticises his Honour’s reference to the sentence in Bar A ssociation at [48] as one that “cannot be read as suggesting that a waiver will occur simply where a party puts its state of mind in issue, if legal advice is likely to have affected that state of mind”. The submission takes the primary judge’s reasons out of context. His Honour found the evidence amounted to an implied assertion of the content of the communications, including privileged communications, and where Mastercard in its pleading and by filing the affidavit of Mr Koh put its subjective state of mind in issue. This is not a simple state of mind case. And, as explained in addressing issue 1, Bar Association at [48] is not an exhaustive statement of how the inconsistency principle may operate.

83 Further, the Mastercard submissions must confront the additional findings at PJ [60]:

It also does not matter that Mr Koh’s evidence does not expressly refer to the existence of legal advice, or that Mr Koh’s assertions were not explicitly about, and did not directly or explicitly disclose the content of, any legal advice. It is tolerably clear from the scant details given by Mastercard in respect of its privilege claims that communications to which Mr Koh was a party are said to (in whole or in part) contain, record or reproduce legal advice, or were made for the dominant purpose of obtaining legal advice. Mr Koh’s express or implied assertions about the content of those communications are inconsistent with the confidentiality that would otherwise pertain to those communications and lays them open to scrutiny, and puts their contents in issue, at least to the extent that they address the relevant subject-matter, being the purpose of the SMAs. I should also add that, to the extent that the inconsistency in this respect is informed by considerations of fairness, in my view it would be forensically unfair for Mastercard to maintain the confidentiality of the relevant communications and to deny the ACCC the ability to scrutinise them.

84 Mr Bannan submits that the “scant” reference unfairly characterises the document protocol which the parties agreed for discovery. Be that as it may, his Honour simply made an observation about the level of detail, which is not indicative of error. More substantively, the primary judge is criticised in this paragraph for making a “massive leap” from the specific topics of the evidence of Mr Koh “to a conclusion that his assertions concerned the broad topic of the purpose of the SMAs”. We do not agree. As we have explained, the primary judge was correct to consider all the evidence of Mr Koh in context as opening for consideration whether there are contemporaneous documents relevant to the purpose subject-matter of the strategy and the SMAs. His Honour’s reference to the “relevant subject matter” picks up the evidence of Mr Koh about what was the strategy of the SMAs (paragraphs [18] – [22], [24], [31]) and what it was not (paragraphs [33] – [34]). This then finds expression in the orders made where the subject matter is defined as the strategy or purpose in offering, negotiating, approving or entering into the SMAs.

85 Finally, there is the general submission that considerations of fairness weigh against a finding of waiver, but no explanation is offered as to why it is not forensically unfair for Mastercard to deny to the ACCC the ability to scrutinise the broad claims of Mr Koh.

86 Dealing next with Mr Molu’s evidence, the primary judge focussed on paragraphs [39], [42] –[43] and [68] – [69] to find at PJ [68] that his reference to “following internal discussions … a position was reached internally that these deals were acceptable”. This must be considered in the context of the discovered documents, including an email from Peter Slater, Vice President and Finance Business Partner, to Mr Molu of 19 November 2019 which included:

The contract has a legal stamp on it. Consistent with all our strategic merchant deals the contract has been reviewed and approved by legal. The commercial structure in the agreement has also been reviewed and approved by our regulatory function and is consistent with most of our other SM agreements.

87 The primary judge further found that the additional email chain as annexed to the affidavit of Mr Molu included emails to and from Mr Chuah, much of which was redacted in reliance on claims of legal professional privilege: PJ [68]. Mastercard does not contend that these findings were not open. Rather, the complaint is that the primary judge erred in finding at PJ [72] that the filing and service of the affidavit resulted in an implied waiver. The submissions in support largely adopt those advanced concerning the affidavit of Mr Koh, which we reject for the reasons given. Two additional points are made. One, the “mere fact” that Mr Molu may have been a party to conversations in which legal advice was provided, combined with his evidence that he did not seek to, and no other person said to him that they wished to, exclude or hinder competitors is insufficient to give rise to an implied waiver, noting that Mr Molu does not reference the content of any legal advice. We reject the submission. Mr Koh reported to Mr Molu who was at the time the Chief Financial Officer of Mastercard Singapore. Mr Molu made several broad statements about his subjective purpose at paragraphs [38] – [39], [42] – [43] and [68] – [69] of his affidavit, which statements the primary judge synthesised at PJ [72] to conclude that there was an implied waiver supported by the additional findings at PJ [73] – [74]. The primary judge was correct to find (for the reasons given concerning the evidence of Mr Koh) that Mr Molu’s evidence amounted to express or implied assertions about the content of his communications with other Mastercard officers, including Mr Chuah, to which he was a party and thus exposed the privileged communications to scrutiny on that subject-matter: PJ [74] – [75].

88 The other complaint is that Mr Molu did not assert in his affidavit that any communications with Mr Chuah gave rise to the internal position that was reached. The submission is that the Peter Slater email reference to “approved by legal”, must be understood in light of other contemporaneous evidence that each SMA received a legal sign off. The fact of the approval says nothing about the content of the advice.

89 With respect, the focus of this submission is unduly narrow. By serving the affidavit, Mastercard exposed a range of confidential communications to support its case that no relevant officer engaged in conduct which had the purpose of substantially lessening competition in the market for supplied debit card acceptance services to merchants. Mr Molu chose to reference communications with Mr Chuah which were subject to claims of legal professional privilege in support of his contended lawful subjective purposes. His evidence is much broader than as characterised by this submission. His evidence includes that he never understood that Mastercard could be leveraging strategic rates on credit to prevent or hinder merchants from using Eftpos, which flows from his earlier evidence that there was no proposal or discussion that involved preventing EPAL from being able to compete in the market. By positively asserting that this was his contemporaneous thinking, it is inconsistent for Mastercard to maintain confidentiality over the internal communications that Mr Molu referenced in general terms. When all of Mr Molu’s evidence is considered in context, which is how the primary judge proceeded at PJ [72] – [75], it is clear that he made express or implied assertions about the purpose subject-matter and thus laid the confidential communications open to scrutiny.

Issue 3

90 Mastercard submits that in any event the scope of the orders made is too wide as not reflecting the extent of implied waiver because the primary judge went beyond the “precise nature of the implied assertions”. However, as Mr Bannan properly accepted in oral submissions, the scope of the orders is closely related to the second issue.

91 The orders provide:

1.    Subject to orders 2 and 3, the respondents produce for inspection by the applicant, within 28 days of the making of this order, unredacted copies of documents falling within the following descriptions:

(a)     documents created between August 2017 and November 2020 constituting or recording communications to which Mr Koh Wee Keong was a party (including communications authored by Mr Koh and communications received by or copied to Mr Koh) which (in whole or in part) record or refer to the following subject matter: the strategy or purpose of the first respondent and/or the second respondent in offering, negotiating, approving or entering SMAs (as defined in the Further Amended Statement of Claim) (the Koh waived subject-matter);

(b)     documents created between August 2017 and November 2020 constituting or recording communications to which Mr Naushaza (Bobby) Molu was a party (including communications authored by Mr Molu and communications received by or copied to Mr Molu) which (in whole or in part) record or refer to the following subject matter: the strategy or purpose of the first respondent and/or the second respondent in offering, negotiating, approving or entering SMAs (as defined in the Further Amended Statement of Claim) and/or the likely effect of such SMAs (the Molu waived subject-matter).

1.     The documents produced in accordance with order 1 may be redacted to reflect claims of legal professional privilege insofar as the redacted parts of the documents do not refer to or address either the Koh subject-matter or the Molu subject-matter.

3.    Order 1 does not require the respondents to produce any documents that have already been discovered or otherwise provided to the applicant by the respondents in unredacted form and which the respondents have not subsequently requested that the applicant delete.

92 Self-evidently, the orders for production must be limited to the scope of the implied waiver. Mr Bannan submits that the primary judge impermissibly ordered Mastercard to produce documents not limited to the purpose of the SMAs, but to any other documents referring to the purpose and to the strategy. He contrasts the findings at PJ [54] and [74] with the determinations at [79] and [80] which then find expression in the orders. Rather than limit the scope to privileged documents relevant to discouraging merchants from routing debit transactions through Eftpos, or preventing EPAL from engaging in competitive conduct, the orders extend to the defined “subject matter” being the strategy or purpose in offering, negotiating, approving or entering into SMAs.

93 That submission falls with our resolution of issues 1 and 2. As is now revealed, the scope of the orders narrows to 10 emails in the relevant period. The waiver concerns the existence of contemporaneous documents which record views, for or against, those expressed in the affidavits of Mr Koh and Mr Molu. Their evidence is not limited to communications about a purpose of seeking to limit competition in the routing of debit card transactions. It extends to the purpose of the strategy and the SMAs that Mastercard pleads in defence. The confidentiality that formerly attached to communications relevant to the understanding of Mr Koh and Mr Molu (and in turn their understanding of the views expressed by other officers of Mastercard) relevant to the purpose of the strategy and the SMAs has been waived in a way that is not confined to a subset of communications concerned with any anti-competitive purpose.

94 Accordingly, the orders of the primary judge were not impermissibly broad. For these reasons, Grounds 1 and 2 fail.

Ground 3

95 By Ground 3 of the notice of appeal Mastercard claims that the primary judge erred in finding that privilege was waived in the communications referred to in Grounds 1 and 2 prior to Mastercard reading the paragraphs of the affidavits of Mr Koh and Mr Molu that gave rise to the waiver of privilege.

96 Before the primary judge, Mastercard submitted that upon his Honour making a ruling on waiver of privilege it wished to have an opportunity to consider whether it read into evidence the words of the affidavits that gave rise to any waiver of privilege, submitting that it was premature to order production of the disputed documents. In making this submission to the primary judge counsel for Mastercard cited the primary judge’s decision in Archer Capital at [53].

97 In Archer Capital, an unsigned statement of evidence had been served and in that circumstance his Honour held that it was premature – before hearing the evidence – to determine whether the evidence might result in an implied waiver of privilege which was a matter that could only be determined at trial if and when the evidence was led. His Honour held that in the circumstances the serving of an unsigned statement of intended evidence did not amount to a waiver of privilege in relation to all communications that might bear upon the anticipated evidence.

98 Returning to the present case, the primary judge did not accept Mastercard’s submission. His Honour held at PJ [78] that the circumstances of this case were different and distinguishable from the circumstances considered in Archer Capital. His Honour held that, among other things, the filing and service of sworn affidavits is different from the mere service of an unsigned statement of intended evidence and that for the reasons that his Honour gave, Mastercard’s actions in filing and serving the affidavits of Mr Koh and Mr Molu were inconsistent with the maintenance of privilege in communications which those affidavits lay open to scrutiny. His Honour held that those actions had resulted in a waiver of privilege in respect of the relevant communications, or parts thereof, even if Mastercard might later decide not to read the relevant parts of the affidavits. His Honour concluded that it followed that he did not consider that it was appropriate to give Mastercard the opportunity to consider whether it would read the offending parts of the affidavits so as to avoid any waiver.

99 On this appeal, Mastercard put the submission in a more developed way than the terms in which it had been argued before the primary judge. Mastercard submitted that the primary judge erred at PJ [78] – [79] in finding that an implied waiver had occurred prior to the affidavits being admitted into evidence. Mastercard submitted that any inconsistency would only arise at the point in time when Mastercard read the affidavits into evidence at trial. It was submitted that before then, Mastercard had not acted upon the evidence in such a way as to effect a waiver and that any unfairness to the ACCC could only arise when the affidavits are read and admitted into evidence.

100 In addition to relying on Archer Capital, Mastercard cited the decision of the primary judge in Anbu v Vulcanite Pty Limited [2015] FCA 283; (2015) 324 ALR 303. In Anbu, the primary judge held that there had been no implied waiver of legal professional privilege by the applicant swearing and filing an affidavit in which he gave evidence about his state of mind during the negotiation of the agreements that were the subject of the proceeding. The primary basis for his Honour’s rejection of the claim of implied waiver in Anbu was that his Honour held at [37] that nothing in the applicant’s affidavit amounted to an express or implied assertion about the contents of an otherwise privileged communication, or put in issue, or otherwise lay open to scrutiny, any privileged communication. His Honour therefore held that the filing of the applicant’s affidavit did not constitute conduct inconsistent with the maintenance of confidentiality over any privileged communications. After rejecting the claim of implied waiver in Anbu, his Honour made two additional points which included a tentative observation that the claims of implied waiver were, perhaps, premature. In this respect, his Honour stated at [39] – [40]:

First, Mr Anbu’s affidavit was tendered by the respondents for the purposes of this application. It has not been read or relied on by Mr Anbu in these proceedings. It may ultimately be the case that parts of the affidavit will not be read by Mr Anbu at the hearing of the principal proceedings. Other parts may be objected to and rejected. To an extent this shows that the respondents’ assertions of implied waiver arising from the affidavit are perhaps premature.

Second, the same can be said in relation to the respondents’ assertion that the maintenance of privilege in relation to the documents will unfairly handicap the respondents in testing Mr Anbu’s evidence concerning his state of mind. Undoubtedly, at trial, the respondents will seek to cross-examine Mr Anbu concerning his claims and evidence of reliance. That questioning is likely to touch on the fact that Mr Anbu obtained legal advice concerning the employment contract and the two deeds. It is likely, in these circumstance[s], that issues concerning privilege and waiver will arise at trial and in the course of Mr Anbu’s cross-examination. The situation may arise where Mr Anbu’s responses to questioning may lay open to scrutiny the privileged communications and that it would be unfair to the respondents for the confidentiality of the communications to be maintained. It is, however, premature to consider these matters at this early stage of the proceedings.

101 On this appeal, Mastercard advanced in writing a further submission, which counsel for Mastercard fairly acknowledged had not been advanced below, submitting that it raised only a point of law which it should be permitted to argue on appeal. Mastercard submitted that, while it was not clear that the unsigned statements in Archer Capital were served pursuant to a court order, the affidavits in this case were. It was submitted that because the affidavits had been served pursuant to a court order there was no waiver of privilege at common law, citing: Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 552; Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 at [13] – [19]; and Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 2) [2015] NSWSC 994 at [44]. However, in oral submissions counsel for Mastercard abandoned this aspect of the submission, accepting that it was precluded by Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; 174 FCR 547 (ACCC v Cadbury) to which we will refer again below.

102 Mastercard further submitted that there was a divergence in the authorities about whether service of an affidavit resulted in a waiver of privilege in the affidavit, and that the question had not been resolved in this Court, citing Liberty Funding v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 at [22] – 24, Otsuka Pharmaceutical Co., Ltd v Generic Health Pty Ltd (No 2) [2019] FCA 2215 at [24] – 27, and Stuart v Rabobank Australia Ltd [2017] FCA 284 at 15. However, Mastercard submitted that the question here is not whether there was a waiver in relation to the affidavits but in relation to any antecedent documents which are the subject of a waiver, citing: Sader v Elgammal [2024] NSWCA 20; (2024) 113 NSWLR 394 at [98]. Mastercard submitted that, once served, there may be a waiver in relation to an affidavit on the basis that it is no longer confidential if served, but not in relation to the antecedent documents which retain their confidential character.

The issues raised by Mastercard’s submissions under Ground 3

103 The hearing of the proceeding brought by the ACCC will be a civil trial. Subsection 47(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) authorises proof by affidavit at the trial of a civil cause where a direction is made. An affidavit is a written form of testimony that is sworn or affirmed before a person authorised to witness the affidavit: see Impiombato v BHP Group Ltd [2025] FCAFC 9; (2025) 308 FCR 250 at 139; Hua Wang Bank Berhad v Commissioner of Taxation (No 15) [2013] FCA 1124; (2013) 217 FCR 26 at 11. The testimony is the writing in the affidavit, which is the testimonial utterance: see Wigmore on Evidence (1972, 4th ed, Chadbourn Revision) at §1331, cited in Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 at 37. Proof is given by affidavit when the affidavit is read to the Court. Usually, the formal reading of an affidavit is dispensed with, and affidavits are taken as read. The consequences are that the mere swearing of an affidavit is not the giving of evidence under s 47 of the FCA Act but that affidavit evidence is given at trial when it is used under s 47 of the Act and that occurs when it is read in accordance with the practice of the court: Hua at 11.

104 The default position under the Rules is that a party intending to use an affidavit must serve it on each other interested party at least three days before the occasion arises: r 29.08. However, it is usual for the Court to make orders at a case management hearing for the orderly filing of affidavit evidence before trial, which is what occurred in this proceeding, with the affidavits of Mr Koh and Mr Molu being filed on 30 August and 8 September 2023 respectively. The orders made in this proceeding for the filing of affidavit evidence were calculated to give effect to the overarching purpose in s 37M of the FCA Act to facilitate the just resolution of the proceeding according to law, and as quickly, inexpensively and efficiently as possible. The furtherance of that purpose is reflected in the Court’s Practice Notes. The Central Practice Note: National Court Framework and Case Management (CPN-1) provides at [11.1]:

In respect of evidence, parties are entitled to know, with sufficient notice and clarity, the evidence upon which other parties intend to rely. This is important not only to the running of the case, but also to facilitating an early resolution of the case.

105 The primary judge made orders for discovery at different times. Relevant to this appeal, an order requiring Mastercard to make discovery was made on 14 December 2023 after the affidavits of Mr Koh and Mr Molu were filed. This order framed some of the categories of documents by reference to paragraphs of the affidavits of Mr Koh and Mr Molu and several categories of documents employed the defined term “Relevant Mastercard Representative”, which included Mr Koh and Mr Molu.

106 In addressing Mastercard’s submissions and the authorities on which they are based it is desirable to distinguish between two issues so that they do not become conflated:

(1) The first issue is whether the filing of affidavits of evidence in a proceeding effects a waiver of legal professional privilege over the contents of the affidavits.

(2) The second issue, and the relevant issue in relation to Ground 3 of the notice of appeal, is whether the filing of affidavits of evidence can effect an implied waiver of privilege over other communications.

Issue 1:    The filing of an affidavit effects a waiver of any privilege over the contents of the affidavit.

107 There is no legal professional privilege in the contents of the affidavit evidence that Mastercard filed. As between the ACCC and Mastercard, the filing of affidavits of evidence was inconsistent with the maintenance of any confidentiality in their contents and amounts to a waiver of privilege in accordance with the principles essayed in Mann v Carnell at [29]. In this respect, we agree with the analysis of Gordon J in Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88; (2008) 246 ALR 137 (Cadbury v Amcor) at [16], which is supported by what the Full Court said on appeal in a related matter, ACCC v Cadbury at [37], [83], [95] and 103. See also: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 at 127; and Stuart v Rabobank Australia Ltd [2017] FCA 284 at 15. It is irrelevant to the question of waiver of legal professional privilege that the affidavits were filed pursuant to an order of the Court, which counsel for Mastercard accepted. The content of the affidavit evidence that was filed was within the control of Mastercard: ACCC v Cadbury at [43]; Unicomb v Blais [2024] NSWSC 903; (2024) 115 NSWLR 155 at 248 (in the context of Hearne v Street obligations). We therefore reject Mastercard’s submission, to the extent that it was maintained, that because the affidavits had been served pursuant to a court order there was no waiver of privilege at common law in relation to their contents.

Issue 2:    The filing of affidavits of evidence is capable of effecting an implied waiver of privilege over other communications.

108 We do not accept Mastercard’s submission that unless and until the affidavits of its witnesses are read to the Court at trial there is no implied waiver of privilege in relation to the disputed discovered documents.

109 It is significant that the evidence-in-chief in this proceeding is by affidavit. As we explained at [103 ] above the testimony is constituted by the contents of the affidavits upon being read. This is not a situation where the evidence-in-chief is merely foreshadowed by a witness statement, which was a material distinction drawn by Wigney J in Archer Capital.

110 By filing the affidavits in accordance with the Court’s procedural orders Mastercard evinced an intention to open up at trial the issues that are the subject of the affidavits. And it is by reference not just to the issues raised by the pleadings but also in the affidavits of evidence that discovery of documents by categories was ordered by the primary judge. That is because the relevant order for discovery was made after the filing of the affidavits, and the categories of documents referred to the affidavits. Therefore, the question for determination should be framed as whether, for the purposes of discovery and the pre-trial production of discovered documents, Mastercard waived privilege at the point when production was ordered. As with the other principal questions on this appeal, the question of the point in time at which waiver occurs is to be resolved by the application of the principle of inconsistency referred to in Mann v Carnell at [29]. In addressing the question of inconsistency, it is relevant to have regard to context and circumstances which include the obligation on the parties under s 37N of the FCA Act to conduct the proceeding in in a way that is consistent with the overarching purpose in s 37M. That obligation informs the evaluation of conduct that is alleged to be inconsistent with the maintenance of privilege in the relevant documents.

111 In submitting that there was no waiver of privilege until the affidavits were read at trial Mastercard relied on the decision of the New South Wales Court of Appeal in Sader and several cases cited therein. In Sader, the Court held that an order granting access to a property for the purpose of inspection in a contempt proceeding in the Land and Environment Court did not involve the landowner giving assistance in identifying incriminating material and therefore did not attract any privilege against self-exposure to a penalty. An alternative basis on which the appeal was argued was that the first respondent had served evidence in the contempt proceeding and that he had thereby waived any penalty privilege. It was not necessary for the Court of Appeal to determine that alternative issue and ultimately it did not do so, considering that it was best to leave it for more careful consideration if the issue arose at some later time: [95], 103. However, Ward P noted some of the relevant authorities and discussed the issue to some extent.

112 With reference to the decision of Hobhouse J in General Accident Fire and Life Assurance Corporation Ltd v Tanter (The Zephyr) [1984] 1 WLR 100, Ward P at [98] drew a distinction between waiver of legal professional privilege in a pre-trial process and waiver by the use of evidence at trial. In The Zephyr a notice was given under the Civil Evidence Act 1968 (UK) in relation to statements contained in an attached memorandum which appeared on its face to have originally been a privileged document. The memorandum was then deployed in cross-examination but was not tendered, for which leave was required. A submission was made that by deploying the document in this way privilege had been waived in allied documents discovery of which was then sought. Hobhouse J refused the application for discovery, holding at 114 that while privilege in the memorandum itself had been waived at the pre-trial stage, privilege had not been waived in allied documents because the memorandum had not been adduced into evidence by the party claiming privilege.

113 The consideration of the issue of waiver of privilege in The Zephyr and other English cases is influenced by the judicial formulation of Mustill J in Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp (No.2) [1981] Com LR 138, who at 139 described the relevant principle by reference to a party “deploying in court” material which would otherwise be privileged, which is not a complete statement of the relevant principles that are applicable in Australia which are found in Mann v Carnell, in particular at [29]. As Gibbs CJ observed in Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 482, Hobhouse J considered that Mustill J used the words “deploying in court” in a strict sense, as referring to what is in evidence. Gibbs CJ held at 483 that although the question whether the material that has been disclosed has been used in evidence is relevant, it is not decisive. Mustill J’s formulation of “deploying in court” still has currency in the United Kingdom: see Malek H M, Phipson on Evidence (21 st ed, Sweet & Maxwell, 2026) at [26-14].

114 The Zephyr has been the subject of criticism, including that referred to in In re Konigsberg (a Bankrupt) [1989] 1 WLR 1257 at 1264, and by the Divisional Court in R v Secretary of State for Transport Ex p Factortame Ltd (Discovery) (1997) 9 Admin LR 591.

115 In Konigsberg, Peter Gibson J rejected a submission that unless and until a party’s affidavit was read at the hearing and was put in evidence it could not be the subject of a claim of waiver of privilege over other documents. His Lordship referred to the fact that affidavits had to be served and filed in advance of the hearing and that the orders for further evidence, for cross-examination, and for discovery were made on the basis of the affidavit having been served and filed. After referring to The Zephyr Peter Gibson J referred to criticism of the decision in the 13 th edition of Phipson on Evidence at [15-20]. His Lordship must have been referring to a supplement to the 13 th edition, which was originally published in 1982. The 14 th edition of Phipson on Evidence, published in 1990, contains a detailed critique of The Zephyr at [20-37], stating in part:

The rationale of the waiver of privilege over associated documents is that a party is not entitled to show his hand in part. It has no necessary connection with the way in which a trial progresses. In The Zephyr itself, the principal document [was] served on the other parties with a Civil Evidence Act Notice and was put to a witness in cross-examination, yet it was held that neither of these matters was a sufficient use of the document to amount to a waiver of privilege over associated documents. It is submitted that in general the voluntary disclosure of a document should amount to a waiver of privilege over connected documents, irrespective of the stage of the proceedings at which or the purpose for which the document is itself disclosed. We think that the distinction between evidence which is merely disclosed and that which is deployed in evidence is not a real or satisfactory one. …

Moreover, the effect of a document is not confined to its significance at a trial. Most civil actions settle; and the documents disclosed on discovery are of paramount importance in determining whether and at what level a party is prepared to settle.

(Emphasis added.)

116 However, in Balk a nbank v Taher, The Times, 19th February 1994; [1994] 1 WLUK 564, Clarke J rejected a claim that there had been a waiver of privilege in “connected documents” as a consequence of the service of witness statements, holding that:

the mere disclosure of a document which is privileged does not have the effect of waiving privilege for connected documents. In my judgment the statement to the contrary effect in paragraph 20–37 of Phipson is wrong.

117 Subsequently, the criticisms of The Zephyr in the 14 th edition of Phipson on Evidence were revived by the Divisional Court in Factortame. The Court considered a submission that a question of waiver of privilege should be deferred until trial. In addressing that submission Auld LJ, with whom Popplewell J agreed, stated:

Mr Stephen Richards, on behalf of the Secretary of State, submitted first that the application is premature. He suggested that, as the test is one of fairness in the conduct of the trial, it should be left to the trial judge to determine whether the Secretary of State, in the evidence which he deploys in court, is seeking to take an unfair advantage by his partial disclosure. He relied on a proposition of Hobhouse J to that effect in General Accident Fire and Life Assurance Corporation v. Tanter [1984] 1 WLR 100, at 114H-115A, which was followed by Clarke J in Balk a nbank v. Taher & Ors. The Times, 19th February 1994.

However, in General Accident the issue arose for the first time at trial in respect of a document used by counsel in cross examination but not put in evidence. As the editors of Phipson on Evidence, 14th ed. have observed, at para. 20–37, the authorities upon which Hobhouse J relied for the proposition, though all instances in which the privileged document was put in evidence, do not depend upon that fact for their ratio. As the editors of Phipson have also reasoned, “[t]he rationale of the waiver of privilege over associated documents is that a party is not entitled to show his hand in part” and that in general there is no satisfactory distinction for that purpose between disclosure of a document and deploying it in evidence. Peter Gibson J in In re Konigsberg (A Bankrupt) [1989] 1 WLR 1257, at 1264H-1265A, said that he saw the force of those criticisms, expressed in similar terms in the 13th edition. See also Style & Hollander, op. cit. at 225–227. I respectfully join in that disagreement with Hobhouse J’s proposition.

118 In the next paragraph Auld LJ stated:

Much will depend, of course, on the indication given by the party waiving privilege before trial whether he intends to rely upon the privileged material at trial and, if so, for what purpose. If he does intend to put it in evidence, there is an obvious advantage in both parties knowing where they stand before trial. It enables each of them to determine whether and how to proceed with the litigation and to avoid costly adjournments for further discovery and consequential work which otherwise would occur if the point had to be determined at trial. Where, however, there is uncertainty as to the use, if any, a party intends to make at trial of disclosed privileged material, the resolution of the opposing party’s claim to further and associated discovery may have to await the trial, with all the tactical and costly disadvantage that that may be to the party concealing his hand.

(Emphasis added.)

119 Factortame was referred to by Mance J in Vista Maritime Inc v Sesa Goa [1997] CLC 1600 in the following terms:

In that case the Divisional Court discarded the restriction which first instance courts had previously placed on waiver, whereby until material was ‘deployed in evidence’ there could be no waiver of connected material. The Divisional Court took a more flexible approach, holding that waiver of connected material may arise at an earlier stage. Prior to any deployment in evidence, voluntary discovery of certain documents may therefore constitute waiver of connected documents.

120 More recently, Factortame was cited by Deputy Insolvency and Companies Court Judge Parfitt in Re Yuro v [2022] EWHC 2112 (Ch), who stated at [39]:

It would be manifestly unjust and risk undermining the proper management of litigation if the party on the receiving end of an application supported by privileged material had to wait until the substantive hearing before being able to obtain sight of the remainder of the privileged material concerning the issue in question. To have to wait until that point would invite an application for an adjournment at the last minute, wasting court time and costs for both sides. It seems to me that the moment at which a party is taken to have deployed material in court must be earlier than that, at least if it is clear that the party will ultimately be relying on the material. As Mr McCombe said, why put off dealing with the issue. I agree. This was the view taken by Auld LJ in the Divisional Court in R v Secretary of State for Transport, Ex p. Factortame [1997] EWHC Admin 445 …

121 As to the decision of Hobhouse J in The Zephyr, Judge Parfitt stated at [40]:

I do not accept that Hobhouse J was closing the door on the pragmatic approach subsequently taken by Auld LJ in Factortame. Rather, it seems he was addressing the specific application before him. If it had been clear that the document in Tanter was going to form part of the evidence and there had been no need for a further application under the Civil Evidence Act 1968, the outcome might have been different. In any event, the approach in Factortame was broadly approved by the Court of Appeal in Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901, as referred to in a passage in Passmore on Privilege on timing and deployment issues which Mr McCombe took me to.

122 Passmore C, Privilege (5th ed, Sweet & Maxwell, 2024) contains a section commencing at [7-582] titled “Timing and deployment issues” in which many of the English authorities are discussed.

123 Returning to the decision of the New South Wales Court of Appeal in Sader, at [99] – [102] Ward P cited several decisions of the New South Wales Supreme Court as being relevant to the issue, which are also relied on by Mastercard. The first was Sevic v Roarty (1998) 44 NSWLR 287 where the question in issue was whether the service of an expert report constituted a waiver of privilege over documents furnished to the expert for the purposes of the report. Each member of Court held that there had been no waiver of privilege but adopted different paths of reasoning. One issue on the appeal was whether s 122 of the Evidence Act 1995 (NSW) applied derivatively: see now Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; 201 CLR 49; Evidence Act 1995 (NSW), s 131A; Uniform Civil Procedure Rules 2005 (NSW), r 1.9. Sheller JA noted at 293 that counsel for the appellant accepted that if s 122(2)(c) of the Evidence Act applied, then disclosure of the expert report in accordance with directions of the Court was under “compulsion of law” for the purposes of that provision. However, the appellant also relied on the common law principles as then understood and which were essayed in Maurice and Goldberg, submitting by reference to notions of fairness that privilege had been waived. At 295 – 296 Sheller JA made some obiter remarks about the position at common law but ultimately concluded at 300 that the issue was governed by the Evidence Act and that privilege had not been waived because the report had been disclosed under compulsion of law.

124 Powell JA considered the issue by the application of common law principles, and held that because the report had not been, and might never be, tendered in evidence, and because the report had not been used in a way that made it unfair for the appellant, there had been no waiver of privilege. In the course of his reasons Powell JA addressed at 303 – 306 the decision of Hobhouse J in The Zephyr and other English authorities concerning the production of documents under compulsion of law. At 301, in a passage cited by Ward P in Sader at [99], Powell JA stated:

… waiver is not to be implied or imputed where the document the delivery of which is relied upon to found the implication, or to support the imputation, of waiver was delivered — whether to the other party to the litigation or to a third party — pursuant to an order of a court or otherwise under compulsion of law unless the documents be later tendered in evidence on the hearing of the proceedings in which the parties are involved, or otherwise used in such a way on the hearing of those proceedings as would make it unfair to the other party not to treat the privilege as having been waived.

125 The third member of the Court in Sevic, Fitzgerald A-JA, held at 309 that the expert report was plainly inadmissible and that therefore there was no prospect of unfairness to the appellant at trial for the purposes of the principles relating to waiver essayed in Maurice and Goldberg which then prevailed. Fitzgerald A-JA did not find it necessary to conclude whether the Evidence Act applied derivatively.

126 The reasoning of Powell JA in Sevic set out at [124 ] above runs up against the decision of the Full Court of this Court in ACCC v Cadbury at [43], is not consistent with Unicomb at [248] and is not consistent with Mastercard’s acceptance of these authorities and the abandonment of its submission that there can be no waiver if something is provided by compulsion. And in Liberty Funding the Full Court (Branson, Sundberg and Allsop JJ) stated at [24] that there was a real issue as to the correctness of Sevic and the decision of the New South Wales Court of Appeal in Akins, at least in so far as they dealt with the question of waiver at common law by service of statements (or affidavits) of witnesses in advance of the trial. That expression of doubt has now been elevated by Cadbury v Amcor and ACCC v Cadbury.

127 The next relevant authority cited by Ward P in Sader was the decision of McDougall J in Waugh Asset Management. In that case the defendant filed a witness statement from which his Honour was prepared to infer that legal advice had been obtained in relation to an element of the transaction that was the subject of the proceeding. The plaintiff caused a subpoena to be issued and served on the lawyers who gave the advice requiring production of the relevant files. The defendant opposed access to the files on the ground of privilege, with the plaintiff responding with a claim that privilege had been waived. McDougall J held that the common law, and not the Evidence Act, applied to the resolution of the claim for privilege and the question whether it had been waived. His Honour stated at [13] that “the relevant framework of analysis” was that the witness statement was produced pursuant to a requirement of the Court, or produced under compulsion and at [15] cited the passage from the reasons of Powell JA in Sevic which we set out at [124 ] above. McDougall J concluded at [17] and [19] that privilege had not been waived. Central to his Honour’s analysis was that the witness statement had been filed and served “under compulsion of law”, being the Court’s directions. For reasons we have given by reference to ACCC v Cadbury at [43] and Mastercard’s acceptance of that position, that is not an analysis that would prevail in this Court.

128 The next relevant authority cited by Ward P in Sader was the decision of Sackar J in Australian Institute of Fitness. The issue in that case was whether the contents of an affidavit filed by a party after the commencement of the trial in response to claims made in an amended statement of claim gave rise to a waiver of privilege over legal advice said to have been referred to in the affidavit. The ratio of Sackar J’s decision was that his Honour at [40] – [41] did not consider that the affidavit put the legal advice in issue. His Honour then turned to the timing issue, but on the express basis that the issue of timing of any waiver strictly did not need to be decided. Sackar J stated at [43] that he was bound by Akins to hold that the question of waiver would not arise until the affidavit was sought to be read or deployed in the proceedings. It is evident from [45] of Sackar J’s reasons that his Honour entertained concerns about Akins, stating at [46]:

Issues like these will have to be dealt with in a practical way. Due regard must always be given to such a fundamental privilege as the one under consideration. But essential case management will sometimes require a proactive approach in ensuring fairness to both sides. Service of an affidavit does at least inform the opposing party of both the substance and form of the proposed evidence. It would be a nonsense and unthinkable for a trial, given the costs usually involved, to be unduly interrupted with the belated production of documents. If a waiver has occurred or occurs, say, during cross examination, a trial judge will have to assess the circumstances of any particular case to consider whether a special costs order may or may not be necessary in the circumstances.

(Emphasis added.)

129 In conclusion, there is nothing in the New South Wales authorities on which Mastercard relied which causes us to depart from our view that the primary judge was correct to hold that the filing of the relevant affidavits of evidence by Mastercard was effective to give rise to a waiver of privilege at the time production of discovered documents was ordered. The order for the filing of the affidavits did not compel the disclosure of the evidence within them, and Mastercard did not submit otherwise. Subject to any rulings as to admissibility, upon being read at trial the affidavits will be the testimony of the witnesses. The procedural orders for the filing of affidavit evidence had the effect of making the filing of the affidavits a precondition to their admission. Mastercard has not foreshadowed any actual intention or given any undertaking not to read any particular sentences of the affidavits. The filing of the affidavits was therefore a significant formal step with legal consequences. The requirement to file the affidavits of evidence, in the context of a procedural framework where substantial discovery occurred after the affidavits were filed, advanced the moment at which Mastercard was required to examine the information that it had marshalled for the purpose of the trial and to decide what it was going to use and what issues it would raise. For the reasons we have given, in the context of this significant economic regulatory proceeding which is the subject of modern case management, and where the parties are subject to the obligation in s 37N of the FCA Act, the filing and continued unqualified reliance by Mastercard on the affidavits of evidence was – at the time of the primary judge’s orders for production of documents – inconsistent with the maintenance of claims for privilege in the relevant documents. It would be antithetical to the proper case management framework of this Court to apply a principle that has the result that a party is not held to the consequences of the filing of its affidavits of evidence until the moment that they are read at trial. Such a course would have the consequence that the ACCC will not have knowledge of the contents of the relevant documents until it suits Mastercard tactically to call the witness and might be liable to lead to a disruption of the trial.

130 As we mentioned earlier, at PJ [78] the primary judge rejected a submission by Mastercard that he should afford Mastercard the opportunity to consider whether or not to rely on or read the words in the affidavits that resulted in the waiver of privilege. On the premise that a waiver of privilege had been established, his Honour’s discretionary decision that it was not appropriate to afford Mastercard that opportunity involved a question of practice and procedure to which the principles referred to by Jordan CJ in In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323 apply on appeal. Mastercard has not established any House v The King error in relation to this aspect of his Honour’s decision.

131 The appeal must be dismissed. There is no reason why costs do not follow the event.

| I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perram, Wheelahan, and McElwaine. |
Associate:

Dated:    30 March 2026

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