Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1348

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1348

Documents in Category 2 relating to Mr McGregor and those referable to paragraphs or parts of Mr Hansen's affidavits of 12 April and 29 July 2003 containing expressions of expert opinion must be disclosed. Similarly, communications in Category 2 referable to paragraphs 21, 23, 27 or 29 of Mr Ivry's affidavit sworn 29 July 2003 must be disclosed. Privilege is otherwise maintained where the evidence is of fact and the foundation of expert opinions is set out in the affidavits or exhibits. The ruling draws clear distinctions between opinion and fact evidence per earlier authorities.

Parties
Applicant: Temwell Pty Ltd (ACN 082 656 157); First Respondent: DKGR Holdings Pty Ltd (formerly known as Dynamic Data Systems Pty Ltd) (In Liquidation) (ACN 062 778 616); Second Respondent / Cross Claimant: mCOM Solutions Inc.; Third Respondent: Dragon Ventures. Com Inc; Fourth Respondent / Cross Claimant: mCOM Solutions Australia Pty Ltd (In Liquidation) (ACN 091 375 950); Fifth Respondent: David Hains; Sixth Respondent: Robert Van Zanten; Seventh Respondent: DragonVentures.com Ltd; Eighth Respondent: Richard Hains; Ninth Respondent: Ian Morris Kiefel; Cross Respondent: Slademere Pty Ltd (ACN 082 656 139); Cross Respondent: Shepridge Pty Ltd (ACN 082 696 077); Cross Respondent: Geoffrey Michael Tauber; Cross Respondent: Morry Fraid; Cross Respondent: Roger Enriquez
Jurisdiction
Australia
Judgment Date
21 November 2003
Procedural Posture
Civil / Interlocutory Application—ruling on Production of Privileged Documents
Outcome
Orders for partial disclosure of privileged documents; specific directions made.
Legal Topics
Legal Professional Privilege, Discovery, Expert Evidence, Waiver of Privilege
Evidence Civil Procedure Legal Professional Privilege Discovery Expert Evidence Waiver of Privilege

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Parties

Temwell Pty Ltd (ACN 082 656 157)

Applicant

DKGR Holdings Pty Ltd (formerly known as Dynamic Data Systems Pty Ltd) (In Liquidation) (ACN 062 778 616)

First Respondent

mCOM Solutions Inc.

Second Respondent / Cross Claimant

Dragon Ventures. Com Inc

Third Respondent

mCOM Solutions Australia Pty Ltd (In Liquidation) (ACN 091 375 950)

Fourth Respondent / Cross Claimant

David Hains

Fifth Respondent

Robert Van Zanten

Sixth Respondent

DragonVentures.com Ltd

Seventh Respondent

Richard Hains

Eighth Respondent

Ian Morris Kiefel

Ninth Respondent

Slademere Pty Ltd (ACN 082 656 139)

Cross Respondent

Shepridge Pty Ltd (ACN 082 696 077)

Cross Respondent

Geoffrey Michael Tauber

Cross Respondent

Morry Fraid

Cross Respondent

Roger Enriquez

Cross Respondent

Procedural Posture

Civil / Interlocutory Application—ruling on Production of Privileged Documents

Legal Issues

  1. 1 Whether privileged communications between the mCom respondents and certain witnesses (Hansen, Ivry, McGregor) should be produced to Temwell's solicitors under the rules on legal professional privilege and implied waiver.

Ratio Decidendi

Documents in Category 2 relating to Mr McGregor and those referable to paragraphs or parts of Mr Hansen's affidavits of 12 April and 29 July 2003 containing expressions of expert opinion must be disclosed. Similarly, communications in Category 2 referable to paragraphs 21, 23, 27 or 29 of Mr Ivry's affidavit sworn 29 July 2003 must be disclosed. Privilege is otherwise maintained where the evidence is of fact and the foundation of expert opinions is set out in the affidavits or exhibits. The ruling draws clear distinctions between opinion and fact evidence per earlier authorities.

Court Disposition

Orders for partial disclosure of privileged documents; specific directions made.

Orders

  • All documents in Category 2 relating to Mr McGregor to be disclosed to Applicant's solicitors.
  • All documents in Category 2 referable to paragraphs or relevant parts of Mr Hansen's affidavits sworn 12 April and 29 July 2003 containing expert opinion to be disclosed.