Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057

Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057

Common law legal professional privilege attaches to all documents obtained or created by ASIC after 16 January 2009 for the dominant purpose of contemplated litigation, including draft and signed witness statements, file notes, and related correspondence, because the relevant purpose was litigation, they were received by ASIC in confidential circumstances, and the proceedings were in contemplation as of that date.

Jurisdiction
Australia
Judgment Date
12 September 2011
Procedural Posture
Application for Production of Documents (privilege Claim) / Interlocutory Order (pre Trial Discovery)
Outcome
ASIC entitled to maintain privilege claims for all documents coming into existence on or after 16 January 2009; no order as to costs.
Legal Topics
['legal Professional Privilege' 'confidentiality in Discovery' 'dominant Purpose Test']
['practice and Procedure' 'evidence'] ['legal Professional Privilege' 'confidentiality in Discovery' 'dominant Purpose Test']

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Procedural Posture

Application for Production of Documents (privilege Claim) / Interlocutory Order (pre Trial Discovery)

Legal Issues

  1. 1 ['Are the documents in question subject to legal professional privilege under common law?' 'Were the communications confidential?' 'Were the documents created in contemplation of litigation?' 'Were the documents created for the dominant purpose of litigation?' 'Is the position different for signed witness affidavits?']

Ratio Decidendi

Common law legal professional privilege attaches to all documents obtained or created by ASIC after 16 January 2009 for the dominant purpose of contemplated litigation, including draft and signed witness statements, file notes, and related correspondence, because the relevant purpose was litigation, they were received by ASIC in confidential circumstances, and the proceedings were in contemplation as of that date.

Court Disposition

ASIC entitled to maintain privilege claims for all documents coming into existence on or after 16 January 2009; no order as to costs.

Orders

  • ['The parties bring in short minutes of order within 3 days giving effect to the reasons for decision.' 'Short minutes should resolve the status of the interlocutory application of 11 August 2011.']