Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1032

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1032

The documents in question, being notes of conferences between the expert and the applicant’s legal counsel, comprised communications of information and suggestions to the expert for the report's preparation; maintaining privilege over them would be unfair, and the claim of privilege must be rejected.

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: 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
29 September 2003
Procedural Posture
Civil / Ruling on Claim of Legal Professional Privilege (interlocutory)
Outcome
Claim of legal professional privilege rejected.
Legal Topics
Legal Professional Privilege, Subpoena, Expert Evidence
Evidence Civil Procedure Legal Professional Privilege Subpoena Expert Evidence

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

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

Civil / Ruling on Claim of Legal Professional Privilege (interlocutory)

Legal Issues

  1. 1 Whether certain documents produced by an expert witness under subpoena are protected by legal professional privilege

Ratio Decidendi

The documents in question, being notes of conferences between the expert and the applicant’s legal counsel, comprised communications of information and suggestions to the expert for the report's preparation; maintaining privilege over them would be unfair, and the claim of privilege must be rejected.

Court Disposition

Claim of legal professional privilege rejected.

Orders

  • Claim of privilege over Ms Wilson’s handwritten notes of 23 November 2001 is rejected.
  • Claim of privilege over Ms Wilson’s handwritten notes of 19 May 2003 is rejected.