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Commonwealth v Temwood Holdings Pty Ltd

Commonwealth v Temwood Holdings Pty Ltd

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THE COMMONWEALTH OF AUSTRALIA -v- TEMWOOD HOLDINGS PTY LTD & ORS [2002] WASC 107

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 107
Case No:	CIV:1427/2001	Heard:	6 MAY 2002
Coram:	WHEELER J	Delivered:	15/05/02
No of pages:	9	Judgment Part:	1 of 1
Result:	Application allowed in part
Category:	B
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Parties:	THE COMMONWEALTH OF AUSTRALIA TEMWOOD HOLDINGS PTY LTD ASEAN AUSTRALIAN ASSETS PTY LTD (ACN 009 424 193) NEIL OLIVER
Catchwords:	Practice and procedure Discovery and inspection of documents Legal professional privilege Waiver State of mind
Legislation:	Nil
Case References:	Ampolex v Perpetual Trustee (1995) 37 NSWLR 405 Attorney-General (NT) v Maurice & Ors (1986) 161 CLR 475 Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476 Garratt's Ltd v Thangathurai [2002] NSWSC 39 Hoad v Nationwide News Pty Ltd & Ors (1998) 19 WAR 468 Mann v Carnell (1999) 201 CLR 1 Southern Equities v Arthur Andersen (1997) 70 SASR 166 The Commonwealth of Australia v Temwood Holdings Pty Ltd [2001] WASC 282 BP Australia Ltd v Stallwood [2000] WASC 75 Goldberg v Ng (1995) 185 CLR 83 Great Atlantic Insurance Co Ltd v Home Insurance Co [1981] 1 WLR 529 John Tanner Holdings Pty Ltd v Mortgage Management Ltd [2001] 182 ALR 201 Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [1981] Com LR 138 Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925 Re The Real Estate and Business Agents Supervisory Board; Ex parte Cohen, unreported; SCt of WA; Library No 980688; 17 November 1998 Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 156 ALR 634 Temwood Holdings Pty Ltd v Oliver [1999] WASC 212 Thomason v Campbelltown Municipal Council (1939) SR (NSW) 347 Waterford v Commonwealth (1987) 163 CLR 54 Western Australia v Watson [1990] WAR 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : THE COMMONWEALTH OF AUSTRALIA -v- TEMWOOD HOLDINGS PTY LTD & ORS [2002] WASC 107 CORAM : WHEELER J HEARD : 6 MAY 2002 DELIVERED : 15 MAY 2002 FILE NO/S : CIV 1427 of 2001 BETWEEN : THE COMMONWEALTH OF AUSTRALIA

Applicant

AND

TEMWOOD HOLDINGS PTY LTD

First Respondent

ASEAN AUSTRALIAN ASSETS PTY LTD (ACN 009 424 193)

Second Respondent

NEIL OLIVER

Third Respondent

Catchwords:

Practice and procedure - Discovery and inspection of documents - Legal professional privilege - Waiver - State of mind

Legislation:

Nil

(Page 2)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant : Mr A R Beech

First Respondent : Mr J C Giles

Second Respondent : Mr N E Farrante

Third Respondent : Mr N E Farrante

Solicitors:

Applicant : Australian Government Solicitor

First Respondent : Solomon Brothers

Second Respondent : Michell Sillar McPhee

Third Respondent : Michell Sillar McPhee

Case(s) referred to in judgment(s):

Ampolex v Perpetual Trustee (1995) 37 NSWLR 405
Attorney-General (NT) v Maurice & Ors (1986) 161 CLR 475
Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476
Garratt's Ltd v Thangathurai [2002]…

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.

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Details

Case: [2002] WASC 107
Decision Date

CaseChat Overview and Summary

The case before the Supreme Court of Western Australia, **The Commonwealth of Australia v Temwood Holdings Pty Ltd**, concerns an application for inspection of certain documents, particularly those alleged to be subject to legal professional privilege. The application is brought by the first respondent, Temwood Holdings Pty Ltd, against the Commonwealth, who opposes the inspection on grounds of legal professional privilege. The background of the case involves the Commonwealth's investigation into alleged breaches of the Foreign Acquisitions and Takeovers Act by Temwood Holdings Pty Ltd, among others. The Commonwealth had previously obtained documents from Mr Oliver, who had become involved in litigation with Temwood Holdings Pty Ltd. The central legal issues revolve around whether the Commonwealth's acknowledgment of the existence of legal advice and its disclosure of the effect of that advice have resulted in a waiver of legal professional privilege.

The court examined whether the Commonwealth's conduct, particularly through the affidavit of Mr Brosnan, implied a waiver of legal professional privilege. The first respondent argued that the disclosure of the effect of the legal advice received by Mr Brosnan, as stated in his affidavit, implied a waiver of privilege. The Commonwealth, on the other hand, maintained that such disclosure did not necessarily lead to a waiver. The court found that while the mere reference to the substance of the advice did not automatically imply a waiver, the specific assertion by Mr Brosnan regarding the propriety of the Commonwealth's conduct did put the state of mind of the Commonwealth's officers in issue. Consequently, the privilege was waived to the extent that it related to documents 2 and 3 on the Commonwealth's list. The court also noted that other documents could potentially be inspected with certain parts excised if they contained distinct and unrelated privileged material.

In conclusion, the court allowed the application in part, ordering the Commonwealth to produce for inspection copies of documents numbered 2 and 3 from the list of documents, with the excision of paragraph 9 of document 3 if deemed necessary.

Orders