Commonwealth v Temwood Holdings Pty Ltd

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



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2002] WASC 107
Case No:CIV:1427/20016 MAY 2002
Coram:WHEELER J15/05/02
9Judgment Part:1 of 1
Result: Application allowed in part
B
PDF Version
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]…
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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.

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Background to the litigation

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Evidence Before The Court

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Legal Principle Established

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