Wenkart T.R. & Anor v The Commissioner, Australian Federal Police & Ors [1995] FCA 788

Wenkart T.R. & Anor v The Commissioner, Australian Federal Police & Ors [1995] FCA 788

Where the only evidence before the Court is that the documents do not concern the proceedings or the privilege issue, and there is no cross-examination or contrary evidence, the claim for setting aside the subpoena is accepted. For documents which may prejudice the winding up, production is allowed in redacted (blacked out) form, reserving applicants' right to apply for less redacted access subject to undertakings.

Parties
Applicant: Thomas Richard Wenkart; Applicant: Geoffrey Albert Holden; First Respondent: Commissioner, Australian Federal Police; Second Respondent: Michael Wayne Lutze; Third Respondent: Nika Management Services Pty Ltd (in liquidation) (ACN 002 770 505) (formerly known as Macquarie Professional Services Pty Ltd)
Jurisdiction
Australia
Judgment Date
19 September 1995
Procedural Posture
Practice and Procedure (subpoena Application) / Interlocutory Motion Regarding Production of Documents Under Subpoena
Outcome
Application to set aside part of subpoena granted for specific documents; production of other documents permitted in redacted form; costs order as described.
Legal Topics
Subpoena, Legal Professional Privilege, Winding Up of Company, Production of Documents
Practice and Procedure Insolvency Subpoena Legal Professional Privilege Winding Up of Company Production of Documents

Case Brief

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Parties

Thomas Richard Wenkart

Applicant

Geoffrey Albert Holden

Applicant

Commissioner, Australian Federal Police

First Respondent

Michael Wayne Lutze

Second Respondent

Nika Management Services Pty Ltd (in liquidation) (ACN 002 770 505) (formerly known as Macquarie Professional Services Pty Ltd)

Third Respondent

Procedural Posture

Practice and Procedure (subpoena Application) / Interlocutory Motion Regarding Production of Documents Under Subpoena

Legal Issues

  1. 1 Whether the subpoenaed documents sought are relevant to any issue in the proceedings
  2. 2 Whether the liquidator properly exercised a waiver of legal professional privilege
  3. 3 Whether parts of documents prejudicial to the course of winding up should be disclosed

Ratio Decidendi

Where the only evidence before the Court is that the documents do not concern the proceedings or the privilege issue, and there is no cross-examination or contrary evidence, the claim for setting aside the subpoena is accepted. For documents which may prejudice the winding up, production is allowed in redacted (blacked out) form, reserving applicants' right to apply for less redacted access subject to undertakings.

Court Disposition

Application to set aside part of subpoena granted for specific documents; production of other documents permitted in redacted form; costs order as described.

Orders

  • Order in terms of para 3 of the notice of motion filed 18 September 1995 (setting aside production of three specified documents)
  • Each party to the motion bear its own costs of the motion