JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July and 5 August 2009
DATE OF JUDGMENT:	6 August 2009
CASE MAY BE CITED AS:	Re AWB Limited (No 6)
MEDIUM NEUTRAL CITATION:	[2009] VSC 330

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CORPORATIONS – legal professional privilege – application by AWB Limited for access to documents - proceedings by ASIC against former managing director of AWB Limited seeking civil penalties – examinations conducted under s 19 of the ASIC Act 2001 and statements given to ASIC in relation to the affairs of AWB Limited – AWB Limited has reasonable grounds to believe that privileged and confidential information may be in the transcript of the examinations and the statements – transcripts and statements ordered to be discovered by ASIC to the defendant – application by AWB Limited to examine the transcripts and statements to assert claims of privilege – whether AWB Limited should be given a realistic and practical opportunity to assert and test is claims to privilege and confidentiality - application granted on terms

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J O'Bryan SC with Ms Z Maud	The Australian Securities and Investments Commission
For the Defendant	Mr K Lyons with Ms M Tittensor	Galbally & O’Bryan Solicitors
For AWB Limited	Mr C Scerri QC with Mr N McAteer	Allens Arthur Robinson

ASC v Zarro (No 2) (1992) 34 FCR 427
ASIC v P Dawson Nominees Pty Ltd (2008) 169 FCR 227
AWB Limited v ASIC [2008] FCA 1877
Commissioner of Taxation v Citibank (1989) 20 FCR 403
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434
Daniels Corporation v ACCC (2002) 213 CLR 543
Gangemi v ASIC (2003) 129 FCR 284
P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 65 ACSR 239
Sankey v Whitlam (1978) 142 CLR 1
Spargos Mining NL v Standard Chartered Aust Ltd (No 1) (1989) 1 ACSR 311
Trevorrow v State of South Australia (No 4) (2006) 94 SASR 64
Watson v AWB Limited [2009] FCA 215
Zarro v ASC (1992) 36 FCR 40

HIS HONOUR:

On 22 July 2009, ASIC was ordered to make discovery to Mr Lindberg of all transcripts of examinations conducted under section 19 of the ASIC Act 2001, and all other statements including draft statements which had previously not been provided to Mr Lindberg, relating to any questions raised by the pleadings in this proceeding.

By summons dated 31 July 2009, AWB Limited seeks orders in relation to these section 19 examinations and other statements and essentially seeks an order that the transcripts and statements be provided to AWB before…

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 Re AWB Limited (No 6)

Details

AGLC: Re AWB Limited (No 6) [2009] VSC 330
Case: [2009] VSC 330
Decision Date: 6 August 2009

CaseChat Overview and Summary

In the matter of Re AWB Limited (No 6), the primary concern was the disclosure of documents held by the Australian Securities and Investments Commission (ASIC). The Australian Wheat Board Limited (AWB Limited) sought access to documents to assert claims of legal professional privilege and confidentiality. The case was heard in the Federal Court of Australia. The dispute arose from ASIC's proceedings against the former managing director of AWB Limited, seeking civil penalties. During the investigation, examinations were conducted under section 19 of the ASIC Act 2001, and statements were made to ASIC regarding the affairs of AWB Limited. AWB Limited believed that privileged and confidential information might be contained in the transcripts of these examinations and the statements provided to ASIC.

The court was required to determine whether AWB Limited should be granted a realistic and practical opportunity to assert and test its claims to privilege and confidentiality. The central issue was whether AWB Limited should be permitted to examine the transcripts and statements in question to properly assert its claims of privilege and confidentiality. The court had to balance the rights of AWB Limited to protect its privileged information against the need for ASIC to access the documents in its investigation.

The court held that AWB Limited should be granted an opportunity to examine the transcripts and statements to assert its claims of privilege and confidentiality. The court found that it was necessary to provide AWB Limited with a realistic and practical opportunity to assert its claims adequately. The application was granted on terms that provided for the protection of sensitive information and allowed for a confidential examination process. This decision ensured that AWB Limited could properly assert its legal professional privilege while also allowing ASIC to conduct its investigation effectively.

Orders