Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1296

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1296

The Court held that the evidence relied upon by Temwell did not show that the witnesses' states of mind or actions were based on legal advice from Arnold Bloch Leibler, nor was there partial disclosure of confidential privileged communications. Therefore, legal professional privilege over the ABL file had not been waived and disclosure was not required.

Parties
Applicant: Temwell Pty Ltd; First Respondent: DKGR Holdings Pty Ltd (formerly known as Dynamic Data Systems Pty Ltd) (In Liquidation); Second Respondent: mCOM Solutions Inc; Third Respondent: Dragon Ventures. Com Inc; Fourth Respondent: mCOM Solutions Australia Pty Ltd (In Liquidation); Fifth Respondent: David Hains; Sixth Respondent: Robert Van Zanten; Seventh Respondent: Dragonventures.com Ltd; Eighth Respondent: Richard Hains; Ninth Respondent: Ian Morris Kiefel; Cross Claimant: mCOM Solutions Inc.; Cross Claimant: mCOM Solutions Australia Pty Ltd (In Liquidation); Cross Respondent: Temwell Pty Ltd; Cross Respondent: Slademere Pty Ltd; Cross Respondent: Shepridge Pty Ltd; Cross Respondent: Geoffrey Michael Tauber; Cross Respondent: Morry Fraid; Cross Respondent: Roger Enriquez
Jurisdiction
Australia
Judgment Date
13 November 2003
Procedural Posture
Interlocutory Application / Ruling on Call for Production of Privileged Documents
Outcome
Application for production of the unredacted Arnold Bloch Leibler file refused. Legal professional privilege not waived.
Legal Topics
Legal Professional Privilege, Implied Waiver, Disclosure of Documents, Consent to Assignment, Sale of Business
Evidence Corporate Law Legal Professional Privilege Implied Waiver Disclosure of Documents Consent to Assignment Sale of Business

Case Brief

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Parties

Temwell Pty Ltd

Applicant

DKGR Holdings Pty Ltd (formerly known as Dynamic Data Systems Pty Ltd) (In Liquidation)

First Respondent

mCOM Solutions Inc

Second Respondent

Dragon Ventures. Com Inc

Third Respondent

mCOM Solutions Australia Pty Ltd (In Liquidation)

Fourth Respondent

David Hains

Fifth Respondent

Robert Van Zanten

Sixth Respondent

Dragonventures.com Ltd

Seventh Respondent

Richard Hains

Eighth Respondent

Ian Morris Kiefel

Ninth Respondent

mCOM Solutions Inc.

Cross Claimant

mCOM Solutions Australia Pty Ltd (In Liquidation)

Cross Claimant

Temwell Pty Ltd

Cross Respondent

Slademere Pty Ltd

Cross Respondent

Shepridge Pty Ltd

Cross Respondent

Geoffrey Michael Tauber

Cross Respondent

Morry Fraid

Cross Respondent

Roger Enriquez

Cross Respondent

Procedural Posture

Interlocutory Application / Ruling on Call for Production of Privileged Documents

Legal Issues

  1. 1 Whether legal professional privilege over documents in the Arnold Bloch Leibler file has been waived by conduct or evidence.
  2. 2 Whether fairness requires disclosure of privileged communications to opposing parties.
  3. 3 Whether statements of belief or state of mind or actions by witnesses amount to waiver of privilege.

Ratio Decidendi

The Court held that the evidence relied upon by Temwell did not show that the witnesses' states of mind or actions were based on legal advice from Arnold Bloch Leibler, nor was there partial disclosure of confidential privileged communications. Therefore, legal professional privilege over the ABL file had not been waived and disclosure was not required.

Court Disposition

Application for production of the unredacted Arnold Bloch Leibler file refused. Legal professional privilege not waived.

Orders

  • Application for production of the unredacted ABL file refused.
  • No order for inspection of privileged documents in ABL file.