Temwell Pty Ltd (ACN 082 656 157) v DKGR Holdings Pty Ltd

[2003] FCA 630

FEDERAL COURT OF AUSTRALIA

Temwell Pty Ltd (ACN 082 656 157) v DKGR Holdings Pty Ltd [2003] FCA 630

TEMWELL PTY LTD (ACN 082 656 157)  -v-  DKGR HOLDINGS PTY LTD (formerly known as DYNAMIC DATA SYSTEMS PTY LTD) (In Liquidation) (ACN 062 778 616),  mCOM SOLUTIONS INC, DRAGON VENTURES. COM INC, mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950), DAVID HAINS, ROBERT VAN ZANTEN, DRAGONVENTURES.COM LTD, RICHARD HAINS  and  IAN MORRIS KIEFEL

V 663 of 2000

RYAN J

18 JUNE 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY		V 663 of 2000
BETWEEN:	TEMWELL PTY LTD (ACN 082 656 157) Applicant
AND:	DKGR HOLDINGS PTY LTD (formerly known as DYNAMIC DATA SYSTEMS PTY LTD) (In Liquidation) (ACN 062 778 616) First Respondent
mCOM SOLUTIONS INC. Second Respondent
DRAGON VENTURES. COM INC Third Respondent
mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950) Fourth Respondent
DAVID HAINS Fifth Respondent
ROBERT VAN ZANTEN Sixth Respondent
DRAGONVENTURES.COM LTD Seventh Respondent
RICHARD HAINS Eighth Respondent
IAN MORRIS KIEFEL Ninth Respondent

JUDGE:	RYAN J
DATE OF ORDER:	18 JUNE 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for review of the learned Deputy Registrar’s Orders of 6 June 2003 be refused. 

2.The applicant and the cross-respondents on or before 4.00 pm on 26 June 2003 file and serve an affidavit making discovery of documents by an itemised list describing each document for which legal professional privilege is claimed limited to all documents, other than those of which discovery has been made and which have been made available for inspection, recording or evidencing communications with Mr Stephen Sharp and/or Arnold Bloch Leibler (“ABL”) including files of that firm limited to the period 1 January 2000 to 1 July 2000.

3.The applicant and the cross-respondent shall make available for inspection the documents the subject of the affidavit referred to in paragraph 1 on or before 4.00 pm on 10 July 2003 provided that the applicant and the cross-respondent may first redact such documents consistently with the ruling of Deputy Registrar Efthim in this proceeding on 15 April 2003.

4.On or before 10 July 2003, in the event of redaction of the documents or some of them the solicitor who redacts the documents shall file and serve an affidavit saying that such redaction is true and fair.

5.The second and fifth to ninth respondents have leave to file and serve a subpoena requiring production of documents by Vivi Renner and/or Deacons (and its predecessor firm Deacons Graham & James) coming into existence from 1 January 2000 to 1 July 2000 relevant to the issues in this proceeding such subpoena to be returnable before a Registrar of this Court on a date to be fixed.

Note:   Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY		V 663 of 2000
BETWEEN:	TEMWELL PTY LTD (ACN 082 656 157) Applicant
AND:	DKGR HOLDINGS PTY LTD (formerly known as DYNAMIC DATA SYSTEMS PTY LTD) (In Liquidation) (ACN 062 778 616) First Respondent
mCOM SOLUTIONS INC. Second Respondent
DRAGON VENTURES. COM INC Third Respondent
mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950) Fourth Respondent
DAVID HAINS Fifth Respondent
ROBERT VAN ZANTEN Sixth Respondent
DRAGONVENTURES.COM LTD Seventh Respondent
RICHARD HAINS Eighth Respondent
IAN MORRIS KIEFEL Ninth Respondent

JUDGE:	RYAN J
DATE:	18 JUNE 2003
PLACE:	MELBOURNE

REASONS FOR RULINGS ON DISCOVERY OF DOCUMENTS

(a)       The Autobiography of David Hains

1. I accept that the applicant will be concerned to demonstrate a close involvement of the fifth respondent, David Hains, in transactions which commenced in 2000 and an exercise by him of control over the affairs and administration of the corporate respondents.  The applicant has indicated extensive evidence on which it will rely in that regard to demonstrate that Mr Hains was closely involved in attending meetings and giving instructions to, amongst others, solicitors and software experts conducting "due diligence" in respect of the acquisition of the business of the first-named respondent.

2. As I understand it, the best that the applicant can hope to derive from discovery of the autobiography written in 1996 is some expression of policy or philosophy by Mr Hains which is consistent with what it contends was his role or involvement in events in 2000 and beyond.  Those matters then, it is suggested, could be used in cross-examination of Mr Hains.

3. It is obvious on the view most favourable to the applicant that only a fragment of the autobiography, if any of it, could be used in that way.  I consider that the train of inquiry to which such a fragment might give rise would be so peripheral to the issues in the case and of so little utility to the applicant that it would be a wrong exercise of the Court's discretion to compel production of the whole of what was conceived and executed as a personal and private memoir. 

4. As I indicated in the course of argument, it would be a misuse of the Court's resources for it to examine the autobiography for itself to try to identify the fragments which might assist the applicant in the way I have already outlined.  For these reasons, the application for review of the learned Deputy Registrar is refused. 

   (b)      Respondents’ claim for itemised discovery of documents created by or formerly in the possession of Arnold Bloch Leibler

5. By the modified form of proposed Orders which they seek, the respondents ask the Court to require the applicant and the cross-respondents to file and serve an affidavit making discovery of documents by an itemised list describing each document for which legal professional privilege is claimed, limited to the following: 

   (a)all documents in the period 1 March 2000 to 27 September 2001 including those contained in the files of Meerkin & Apel;

   (b)all documents of which discovery has been made and which have been made available for inspection, recording or evidencing communications with Mr Stephen Sharp and/or Arnold Bloch Leibler, (“ABL”), including files of that firm, limited to:

   (i)        the period 1 January 2000 to 1 July 2000 and

   (ii)the period 1 March 1998 to 1 June 1999 relating to or concerning the transaction documents as defined in the particulars to [8] in the third further amended statement of claim. 

6. Enumeration of documents in the way sought by the proposed Order can only assist in identifying those documents for which legal professional privilege has been claimed.  I am not persuaded that identification of documents in the way contemplated by paragraph (a) of the Order proposed by the respondents would assist them in seeking to make out their cross-claim based on the tort of abuse of process.  By contrast with a similar Order for discovery made by the learned Deputy Registrar in favour of the applicant, where the fact and frequency of communications between the individual respondents, David Hains, Richard Hains and Ian Maurice Kiefel was said to lead to a possible line of inquiry related to the alleged personal liability of those respondents for procuring breaches of contracts and related torts, the itemisation now sought, I consider, would not lead to any conceivably useful line of inquiry.  Accordingly I shall decline to make an Order in terms of paragraph (a) of that proposed.

7. Different considerations apply to paragraph (b)(i) of the Order proposed by the applicant, and since what otherwise might be an oppressive burden imposed on the applicant and cross-respondents will be alleviated by the presence in that Order of the saving words, “other than those of which discovery has been made and which have been made available for inspection”, I consider that an Order should be made in terms of paragraph (b)(i).

8. The only basis on which the respondents seek to justify itemisation of the documents described in paragraph (b)(ii) is that they may bear on the proper interpretation of the transaction documents.  I do not consider that the task of construction of those documents which will confront the Court can be advanced by the identification of documents the contents of which are ex hypothesi privileged.  I therefore decline to make an Order in terms of paragraph (b)(ii) of what has been sought. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            18 June 2003

Counsel for the Applicant:	Mr C D Golvan SC with Dr S. Ricketson
Solicitors for the Applicant:	Meerkin & Apel
Counsel for the Second and the Fifth to Ninth Respondents:	Mr J Delany with Mr M.D. Wyles
Solicitors for the Respondent:	Minter Ellison
Dates of Hearing:	12, 13, 14 & 15 May and 18 June 2003
Date of Judgment:	18 June 2003