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ASIC v Rich

ASIC v Rich

Case [2004] NSWSC 1089 16 November 2004

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CITATION: ASIC v Rich [2004] NSWSC 1089

HEARING DATE(S): 4, 5, 8 November 2004 (and written submissions)

JUDGMENT DATE:
16 November 2004

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Claims for privilege upheld except in respect of one document, and part of another.

CATCHWORDS: EVIDENCE - client legal privilege - whether client/lawyer relationship existed between Commonwealth DPP and ASIC - whether communications were privileged, where made between legal officers of DPP and ASIC, and between legal/enforcement officer of ASIC and other ASIC officers - waiver of privilege - issue waiver where ASIC puts in issue its state of mind - disclosure waiver in cases of "partial" disclosure

LEGISLATION CITED: Evidence Act 1995 (NSW) s 126

CASES CITED: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405
Ampolex v Perpetual Trustee Co Ltd (1996) 40 NSWLR 15
ASIC v Rich [2004] NSWSC 1017
ASIC v Rich [2004] NSWSC 969
Attorney-General (NT) v Kearney (1985) 158 CLR 500
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Baker v Campbell (1983) 153 CLR 52
Garrat's Ltd v Thanga Thangathurai [2002] NSWSC 39
Grant v Downs (1976) 135 CLR 674
Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445
Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27
Mann v Carnell (1999) 201 CLR 1
Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332
Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398
Southern Equities Corporation Ltd v Arthur Andersen & Co (1997) 70 SASR 166
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Waterford v The Commonwealth of Australia (1987) 163 CLR 54

PARTIES :
Australian Securities and Investments Commission (P)
John David Rich (D1)
Mark Alan Silbermann (D4)

FILE NUMBER(S): SC 5934/01

COUNSEL: R B S Macfarlan QC with J P A Durack SC, N J Beaumont and J E O'Sullivan (P)
D L Williams SC with M J Steele and S A Goodman (D1, D4)

SOLICITORS: Jan Redfern, Solicitor for Australian Securities and Investments Commission (P)
Joanne Kelly, Solicitor (D1, D4)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 16 NOVEMBER 2004

5934/01 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION V JOHN DAVID RICH & ORS

JUDGMENT (Privilege and waiver of privilege in respect of three groups of documents) (Revised for typographical errors 16 November 2004)

1 HIS HONOUR: This judgment relates to the defendants' claims to access to three categories of documents, over which ASIC has claimed legal advice or litigation privilege. The three categories of documents, which I shall consider in turn, are:

[2004] NSWSC 969

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ASIC v Rich

Details

AGLC: ASIC v Rich [2004] NSWSC 1089
Case: [2004] NSWSC 1089
Decision Date: 16 November 2004

CaseChat Overview and Summary

The case of ASIC v Rich was heard in the Federal Court of Australia. The Australian Securities and Investments Commission (ASIC) sued Mr Rich for various breaches of the Corporations Act, alleging he engaged in insider trading. The dispute involved the admissibility of certain evidence, specifically whether it was subject to client legal privilege and whether ASIC had waived that privilege.

The central legal issues before the court were whether a client-lawyer relationship existed between the Commonwealth Director of Public Prosecutions (DPP) and ASIC, and whether communications between their legal officers and between ASIC's legal and enforcement officers were privileged. Furthermore, the court had to determine if ASIC had waived the privilege by putting its state of mind in issue and by partially disclosing certain documents.

The court held that a client-lawyer relationship existed between the Commonwealth DPP and ASIC. This relationship extended to their legal officers, making communications between them privileged. The court found that ASIC did not waive privilege by putting its state of mind in issue, as the partial disclosure of certain documents did not equate to a full waiver. The court ruled that partial disclosure of privileged documents did not constitute a waiver of privilege unless it was done in a manner that was inconsistent with the maintenance of the privilege. As ASIC had not fully disclosed the privileged documents, the privilege was not waived.

The Federal Court ruled in favour of Mr Rich, finding that the evidence sought by ASIC was subject to client legal privilege and that the privilege had not been waived. Consequently, the evidence was inadmissible, leading to the dismissal of ASIC's case against him.

Orders