ASIC v Vines [2003] NSWSC 1005

ASIC v Vines [2003] NSWSC 1005

There was no waiver of privilege in respect of the draft affidavit produced by the witness’s solicitor, as the drafts were not used to refresh memory in oral testimony, and were merely reflections of instructions, not independent sources of memory stimulus.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: Geoffrey William Vines; Second Defendant: Francis William Robertson; Third Defendant: Timothy John Henry Fox
Jurisdiction
Australia
Judgment Date
31 October 2003
Procedural Posture
Civil / Interlocutory Application During Final Hearing
Outcome
Application for access to produced material denied
Legal Topics
Legal Professional Privilege, Implied Waiver of Privilege, Affidavit Preparation, Production of Documents, Waiver Under Evidence Act
Evidence Equity Legal Professional Privilege Implied Waiver of Privilege Affidavit Preparation Production of Documents Waiver Under Evidence Act

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Parties

Australian Securities and Investments Commission

Plaintiff

Geoffrey William Vines

First Defendant

Francis William Robertson

Second Defendant

Timothy John Henry Fox

Third Defendant

Procedural Posture

Civil / Interlocutory Application During Final Hearing

Legal Issues

  1. 1 Whether evidence given by a witness about a solicitor-prepared draft affidavit amounted to an implied waiver of privilege over that draft
  2. 2 Whether drafts prepared by a solicitor based on discussions with a witness fall into an exception to legal professional privilege

Ratio Decidendi

There was no waiver of privilege in respect of the draft affidavit produced by the witness’s solicitor, as the drafts were not used to refresh memory in oral testimony, and were merely reflections of instructions, not independent sources of memory stimulus.

Court Disposition

Application for access to produced material denied

Orders

  • Access to produced material denied on ground of privilege