Temwell Pty Ltd v DKGR Holdings Pty Ltd

Case [2003] FCA 1078

FEDERAL COURT OF AUSTRALIA

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1078

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

AND

mCOM SOLUTIONS INC. and mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950) v  TEMWELL PTY LTD (ACN 082 656 157), SLADEMERE PTY LTD (ACN 082 656 139), SHEPRIDGE PTY LTD (ACN 082 696 077), GEOFFREY MICHAEL TAUBER, MORRY FRAID, ROGER ENRIQUEZ

V 663 of 2000

RYAN J

8 OCTOBER 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
AND BETWEEN:
mCOM SOLUTIONS INC. and mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950)
Cross-Claimants
AND:
TEMWELL PTY LTD (ACN 082 656 157)
SLADEMERE PTY LTD (ACN 082 656 139)
SHEPRIDGE PTY LTD (ACN 082 696 077)
GEOFFREY MICHAEL TAUBER
MORRY FRAID
ROGER ENRIQUEZ
Cross-Respondents

JUDGE:

RYAN J

DATE:

8 OCTOBER 2003

PLACE:

MELBOURNE

RULING No 10
RULING ON CLAIM OF LEGAL PROFESSIONAL PRIVILEGE IN RESPECT OF DOCUMENTS PRODUCED ON SUBPOENA BY PETER RAYNER

  1. A subpoena has been issued at the instigation of the mCom respondents to Peter Rayner an expert accounting or valuation witness who has sworn affidavits in these proceedings and whose evidence is to be relied on by the applicant (“Temwell”).  Mr Rayner has yet to be cross-examined on his affidavits.  Many of the documents which he has produced are copies of documents earlier produced by way of further discovery from the custody of Meerkin & Apel, the solicitors for Temwell, and which have been the subject of earlier rulings on claims of legal professional privilege.  (See esp. the ruling published on 9 September 2003).

  2. Although not resiling from the claims of privilege rejected in my earlier rulings, Counsel for Temwell accept that those rulings entail that the claim must also be rejected in respect of copies of the same documents or documents corresponding with them.  Accordingly, only nine of the documents produced by Mr Rayner require to be evaluated in the light of Temwell’s claim of legal professional privilege.  In examining each of those documents I have applied the principles discussed in my earlier rulings on claims of legal professional privilege, especially those of 2 and 9 September 2003.  The claim to privilege has been rejected or sustained as indicated in the Schedule attached to this ruling.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:           8 October 2003

Counsel for the Applicant
and Cross Respondents: 		Mr C D Golvan SC with Dr S Ricketson
Solicitors for the Applicant
and Cross Respondents: 		Meerkin & Apel
Counsel for the mCom Respondents
and Cross-Claimants: 		Mr J L Sher QC with Mr J Delany
Solicitors for the mCom Respondents
and Cross-Claimants: 		Minter Ellison
Counsel for Mr Elbaum
and D&E Consulting Pty Ltd: 		Mr M Goldblatt
Solicitors for Mr Elbaum
and D&E Consulting Pty Ltd 		Walker Herceg
Date of Hearing: 1 October 2003
Date of Ruling: 8 October 2003

SCHEDULE TO RULING NO 10

Date Description

Ruling on

Claim of Privilege
1/05/02 E-mail A Godfred-Spenning to Rayner Rejected
17/07/02 E-mail A Godfred-Spenning to Rayner Rejected
20/08/02 E-mail Denise Claessen (Meerkin & Apel) to Rayner and Rundle Sustained
20/05/03 Fax from Phil Rundle to Peter Rayner Rejected
20/05/03 Filenote of Phil Rundle Rejected
Undated Checklist on Expert Evidence Rejected
17/07/03 Letter from Peter Rayner to David Pringle Sustained
29/04/03 Conference note of Phil Rundle Rejected
2/05/03 Filenote of Phil Rundle Rejected
Details
AGLC
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1078
Case
[2003] FCA 1078
Decision Date

CaseChat Overview and Summary

Temwell Pty Ltd, represented by Meerkin & Apel, sought to rely on claims of legal professional privilege to prevent the disclosure of certain documents to the respondents, which included mCom Solutions Inc and others. The documents were produced by Peter Rayner, an expert accounting or valuation witness, and had been subject to previous rulings regarding privilege claims. The court was required to decide whether the claims of legal professional privilege were valid for the documents produced by Mr Rayner, particularly as many of them were copies of documents already produced by Meerkin & Apel, the solicitors for Temwell. The court considered the principles discussed in earlier rulings, especially those of 2 and 9 September 2003, and evaluated each of the nine documents requiring assessment.

The court applied the principles of legal professional privilege, as outlined in previous rulings, to each of the nine documents produced by Mr Rayner. The court determined that the claims of privilege were either rejected or sustained, as detailed in the schedule attached to the ruling. The court concluded that the claims of privilege must also be rejected in respect of copies of the same documents or documents corresponding with them, as established in earlier rulings. The court certified that the preceding numbered paragraphs were a true copy of the Reasons for Judgment.

The court's reasoning was based on the principles discussed in earlier rulings on claims of legal professional privilege. The court evaluated each of the nine documents requiring assessment and determined whether the claims of privilege were valid. The court applied the principles of legal professional privilege to each document and concluded that the claims of privilege must be rejected or sustained, as indicated in the schedule attached to the ruling. The court's decision was based on the application of established principles of legal professional privilege to the specific circumstances of the case.

The court's final orders were that the claims of legal professional privilege were rejected or sustained as indicated in the schedule attached to the ruling. The court certified that the preceding numbered paragraphs were a true copy of the Reasons for Judgment. The court's decision was based on the application of established principles of legal professional privilege to the specific circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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