FEDERAL COURT OF AUSTRALIA
DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191
PRACTICE AND PROCEDURE – legal professional privilege – advice privilege as opposed to litigation privilege – third party communications with solicitor – extent to which privileged
A-G (NT) v Maurice (1986) 161 CLR 435 referred to
ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 referred to
Anderson v Bank of British Columbia (1876) 2 Ch D 644 referred to
Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253 discussed
Baker v Campbell (1983) 153 CLR 52 referred to
Balabel v Air-India [1988] 1 Ch 317 applied
City of Gotha v Sotheby’s [1997] EWCA Civ 1897 referred to
Commissioner of Taxation v Pratt Holdings Pty Ltd [2003] FCA 6 not followed
Committee of Receivers of Galadari v Zealcastle Ltd (unrep) 6 October 1986 referred to
Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325 followed
EssoAustralia Resources Ltd v Commissioner of Taxation (1992) 201 CLR 49 referred to
Grant v Downs (1976) 135 CLR 674 referred to
Greenough v Gaskell (1833) 1 My & K 98, 39 ER 618 referred to
Guardian Royal Exchange Assurance v Stuart [1985] 1 NZLR 596 discussed
Hamersley Iron Pty Ltd v Metal and Engineering Workers’ Union WASC 21 September 1998 referred to
International Minerals & Chemical Corp (Canada) v Commonwealth Insurance Co (1991) 47 CCLI 196 referred to
Kennedy v Lyell (1883) 23 Ch D 387 referred to
Lakatoi v Walker [1999] NSWSC 156 referred to
Lawrence v Campbell (1859) 54 Drew 485; 62 ER 186 referred to
Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 referred to
Mann v Carnell (1999) 201 CLR 1 referred to
Meadon Pty Ltd & Ors v Nommack (No 247) Pty Ltd (Receiver and Manager Appointed) (In Prov Liq) & Ors Federal Court Davies J 31 January 1994 referred to
Miley v Flood [2001] 1 EHC 9; [2001] 2 IR 50 not followed
Minet v Morgan (1873) 8 Ch App 361 referred to
Mitsubishi Electric Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 referred to
Morlea Professional Services Pty Ltd v South British Insurance Co Ltd, Foster J 27 September 1984 referred to
National Crime Authority v S (1991) 29 FCR 203 referred to
Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow (a firm) [1995] 1 All ER 976 referred to and discussed
Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 discussed
Packer v Deputy Commissioner of Taxation (Qld) [1985] 1 Q’d R 275 referred to
Price Waterhouse v BCCI Holdings (Luxembourg) SA [1992] BCLC 583 discussed
Propend Finance Pty Ltd & Ors v The Commissioner, Australian Federal Police & Ors unrep 6 May Davies J referred to
Re Highgrade Traders Ltd [1984] BCLC 151 discussed
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- Case
- [2003] FCA 1191
- Decision Date
CaseChat Overview and Summary
The court considered the objections raised by the applicant's counsel, Mr Smith SC, regarding the affidavit of Mr Holmes and exhibit PJHH1. The objection centred on the basis that Mr Holmes was purporting to give evidence about the purpose of the creation of the documents without personal knowledge or proper identification of the source of the information. The court acknowledged the force in the submissions but ultimately decided that the exhibits PJHH1 and 2 would be admitted into evidence, along with the evidence of Mr Gingerich and any other evidence tendered. The court made it clear that it would not consider any other documents unless they were formally tendered.
The court's reasoning was grounded in the principle that the admissibility of evidence should be determined on the basis of the documents and evidence actually presented and not on assumptions or speculations about other documents. The court emphasised that it would not look at any documents unless they were formally tendered. The court's decision allowed the exhibits PJHH1 and 2 to be admitted, subject to the evidence of Mr Gingerich and any other evidence that might be formally tendered during the proceedings.
ORDERS:
1. The matter was stood over to a date to be fixed for the making of orders in accordance with these reasons and for the hearing of any further argument.
2. The parties were required to deliver an agreed draft minute of order to the associate of Allsop J by 4 November 2003, reflecting the court's reasons.
Orders
Orders of the court
1. Stand the matter over to a date to be fixed for the making of orders in accordance with these reasons and for the hearing of any further argument.
2. On or before 4 November 2003 the parties deliver to the associate of Allsop J an agreed draft minute of order reflecting these reasons.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: ALLSOP J
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