Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985

Applying the principles in the earlier ruling and in Southcorp, privilege was rejected for documents and parts of documents that recorded instructions, suggestions or information supplied to expert witnesses or revealed the development of expert opinions, including draft reports from which that development could be inferred; privilege was sustained where communications reflected confidential legal understanding or case preparation not directed to obtaining a fresh or revised expert report. Some file notes were divisible, so privilege was rejected only for discrete parts recording communications to or from expert witnesses.

Jurisdiction
Australia
Judgment Date
24 September 2003
Procedural Posture
Federal Court Ruling on Claim of Legal Professional Privilege in Relation to Communications to and From the Applicant's Expert Witnesses / Ruling No 7; Production Call for Further Documents
Outcome
Privilege claims were sustained in part and rejected in part for the documents listed in the schedules.
Legal Topics
['legal Professional Privilege' 'expert Witnesses' 'production of Documents' 'draft Expert Reports' 'communications Between Solicitors and Expert Witnesses']
['evidence' 'civil Procedure'] ['legal Professional Privilege' 'expert Witnesses' 'production of Documents' 'draft Expert Reports' 'communications Between Solicitors and Expert Witnesses']

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Procedural Posture

Federal Court Ruling on Claim of Legal Professional Privilege in Relation to Communications to and From the Applicant's Expert Witnesses / Ruling No 7; Production Call for Further Documents

Legal Issues

  1. 1 ['Whether legal professional privilege was sustained or rejected for communications with expert witnesses and related documents sought for production by the mCom respondents.' "Whether draft expert reports and annotations were privileged where they recorded instructions, further information, development of the expert's opinion, counsel's understanding, or case preparation suggestions." 'Whether particular file notes were divisible so that privilege should be rejected only for parts recording communications to or from expert witnesses.']

Ratio Decidendi

Applying the principles in the earlier ruling and in Southcorp, privilege was rejected for documents and parts of documents that recorded instructions, suggestions or information supplied to expert witnesses or revealed the development of expert opinions, including draft reports from which that development could be inferred; privilege was sustained where communications reflected confidential legal understanding or case preparation not directed to obtaining a fresh or revised expert report. Some file notes were divisible, so privilege was rejected only for discrete parts recording communications to or from expert witnesses.

Court Disposition

Privilege claims were sustained in part and rejected in part for the documents listed in the schedules.

Orders

  • ['The rulings on claims of privilege for documents relevant to Peter Rayner, June Wilson, Zeev Goldstein, Professor Leslie Michael Goldschlager and miscellaneous expert-witness documents are as set out in the schedules.' 'The claim as to the file notes of 30 March 2001 at 9.30 am, 17 August 2001 and 20 May 2003 was...