CITATION: ASIC v Rich [2004] NSWSC 923 HEARING DATE(S): 29 & 30 September, 5 & 6 October 2004 JUDGMENT DATE:
7 October 2004JURISDICTION:
EquityJUDGMENT 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 152PARTIES :
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…
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- AGLC
- ASIC v Rich [2004] NSWSC 923
- Case
- [2004] NSWSC 923
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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