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ASIC v Rich

ASIC v Rich

Case [2004] NSWSC 923 7 October 2004

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CITATION: ASIC v Rich [2004] NSWSC 923

HEARING DATE(S): 29 & 30 September, 5 & 6 October 2004

JUDGMENT DATE:
7 October 2004

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: No waiver of client legal privilege

CATCHWORDS: EVIDENCE - client legal privilege - waiver - disclosure waiver - meetings at which accounting and legal advice was given and a decision was made to commence legal proceeding - whether privilege waived over notes of all communications made at meeting, by production of notes of meetings which masked material relating to legal advice but disclosed statements about legal matters

LEGISLATION CITED: Evidence Act 1995 (NSW); ss 118, 119, 122, 126

CASES CITED: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12
Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475
Esso Australia Resources Ltd v Commission of Taxation (1999) 201 CLR 49
Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501
Garrat's Ltd v Thanga Thangathurai [2002] NSWSC 39
General Accident Fire and Life Assurance Corporation Ltd v Tanter [1984] 1 WLR 100
Jones v Dunkel (1959) 101 CLR 298
Mann v Carnell (1999) 201 CLR 1
NRMA Ltd v Morgan (No 2) [1999] NSWSC 694
Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925
Prus Grybowski v Everingham (1986) 44 NTR 7
Re Konigsberg [1989] 1 WLR 1257
Sevic v Roarty (1998) 44 NSWLR 287
Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152

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

FILE NUMBER(S): SC 5934/01

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

THURSDAY 7 OCTOBER 2004

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

JUDGMENT

1 HIS HONOUR: Cassandra Reynolds is a partner in PricewaterhouseCoopers. She was formerly a senior manager in the firm, assisting Paul Carter to prepare several expert reports on which ASIC wishes to rely in this case, and providing assistance to ASIC on forensic accounting issues. Senior counsel for the defendants has explored, during his cross-examination of Ms Reynolds, the role played by PwC in ASIC's decision to commence the present proceeding. The decision was taken by ASIC's National Enforcement Co-ordination Committee ("NECC"), at a meeting held on 3 December 2001, after deliberation at an earlier meeting held on 21 November 2001. On 21 November 2001 the NECC received a report from Mr Carter with respect to the financial collapse of the One.Tel group and the roles of its directors in the group's failure. Mr Carter made a supplementary presentation to the NECC entitled "Analysis of Damages" at the…

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 923
Case: [2004] NSWSC 923
Decision Date: 7 October 2004

CaseChat Overview and Summary

In the case of Australian Securities and Investments Commission v Rich, the court was asked to consider whether the client legal privilege had been waived by the disclosure of certain documents. The matter was heard in the Federal Court of Australia. The primary dispute was whether the defendant had waived the privilege over notes of all communications made at a meeting, by producing notes of the meetings that masked material relating to legal advice but disclosed statements about legal matters.

The legal issues before the court involved the extent of the waiver of privilege when documents that contain privileged information are disclosed but with certain parts redacted or masked. The court had to determine whether the partial disclosure of such documents constituted a waiver of the privilege over the entire document. This involved examining whether the act of production itself, even if it was incomplete, indicated an intention to waive the privilege.

The court found that the partial disclosure of documents containing privileged information, even if masked, does constitute a waiver of the privilege over the entire document. The reasoning was that the act of producing documents with privileged content, regardless of whether some parts are redacted, signifies an intention to waive the privilege. This is because the act of production itself, without full disclosure, does not preserve the confidentiality necessary for the privilege to apply. Therefore, the court concluded that the privilege had been waived.

Orders