ASIC v Rich [2004] NSWSC 923

ASIC v Rich [2004] NSWSC 923

ASIC did not waive client legal privilege. The produced documents disclosed, at most, the fact that legal advice was given and non-privileged matters relating to ASIC's decision-making and administration. They did not disclose the content, reasoning, conclusions, or substance of the legal advice given to ASIC before...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 October 2004
Procedural Posture
Equity Proceeding; Evidentiary Objection Concerning Client Legal Privilege / Final Hearing During Cross Examination
Outcome
No waiver of client legal privilege; ASIC's privilege objection upheld.
Legal Topics
['client Legal Privilege' 'waiver of Privilege' 'disclosure Waiver' 'implied or Imputed Waiver' 'admissibility of Cross Examination Questions']
['evidence' 'civil Procedure'] ['client Legal Privilege' 'waiver of Privilege' 'disclosure Waiver' 'implied or Imputed Waiver' 'admissibility of Cross Examination Questions']

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Procedural Posture

Equity Proceeding; Evidentiary Objection Concerning Client Legal Privilege / Final Hearing During Cross Examination

Legal Issues

  1. 1 ['Whether ASIC waived client legal privilege over communications at NECC meetings by producing notes and documents concerning the meetings without claiming privilege.' 'Whether disclosure of the fact that legal advice was given, or disclosure of non-privileged decision-making material, disclosed the content or substance of privileged legal advice.' 'Whether s 126 of the Evidence Act 1995 (NSW) required further evidence of privileged communications to enable proper understanding of disclosed documents.' 'Whether a cross-examination question seeking the content of discussions about which persons ASIC should sue should be disallowed on the ground of client legal privilege.']

Ratio Decidendi

ASIC did not waive client legal privilege. The produced documents disclosed, at most, the fact that legal advice was given and non-privileged matters relating to ASIC's decision-making and administration. They did not disclose the content, reasoning, conclusions, or substance of the legal advice given to ASIC before it decided to commence proceedings. It was therefore not inconsistent for ASIC to maintain confidentiality over privileged legal communications, s 122(4) was not engaged, and s 126 did not require further disclosure. The cross-examination question was likely to elicit privileged communications and was disallowed.

Court Disposition

No waiver of client legal privilege; ASIC's privilege objection upheld.

Orders

  • ['The question seeking evidence about discussions relating to legal matters and likely to involve disclosure of privileged communications is disallowed.']