Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 967

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 967

Privilege in documents held by Deacons Lawyers may be joint as between DDS, D&E, and Mr Elbaum, but where relevant affidavits by Elbaum or Cattanach amount to disclosure of the substance of legal advice, privilege is impliedly waived over documents relating to that advice and these should be disclosed to the mCom respondents’ legal advisers.

Jurisdiction
Australia
Judgment Date
12 September 2003
Procedural Posture
Interlocutory Application (privilege Claim in Civil Proceedings) / Ruling on Privilege in Subpoenaed Documents
Outcome
Partial waiver of privilege; some documents to be disclosed; costs reserved.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'subpoena of Documents' 'joint Privilege']
['civil Procedure' 'evidence'] ['legal Professional Privilege' 'waiver of Privilege' 'subpoena of Documents' 'joint Privilege']

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Procedural Posture

Interlocutory Application (privilege Claim in Civil Proceedings) / Ruling on Privilege in Subpoenaed Documents

Legal Issues

  1. 1 ['Whether legal professional privilege applies to documents held by Deacons Lawyers on behalf of Mr Elbaum and D & E Consulting Pty Ltd.' 'Whether the privilege is joint as between DDS, Mr Elbaum, and D&E, or limited to DDS.' 'Whether privilege was waived by statements in affidavits or actions by joint holders.']

Ratio Decidendi

Privilege in documents held by Deacons Lawyers may be joint as between DDS, D&E, and Mr Elbaum, but where relevant affidavits by Elbaum or Cattanach amount to disclosure of the substance of legal advice, privilege is impliedly waived over documents relating to that advice and these should be disclosed to the mCom respondents’ legal advisers.

Court Disposition

Partial waiver of privilege; some documents to be disclosed; costs reserved.

Orders

  • ['Privilege waived for certain documents as identified in the schedule and ruling; documents to be made available to mCom respondents’ legal advisers as specified.' 'Other documents to be reviewed by the court if privilege or waiver remains in dispute after further evidence or cross-examination.' 'Questions of costs...