Temwell Pty Ltd v DKGR Holdings Pty Ltd

[2003] FCA 1032

FEDERAL COURT OF AUSTRALIA

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 1032

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

29 SEPTEMBER 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:	29 SEPTEMBER 2003
PLACE:	MELBOURNE

RULING No 9
RULING ON CLAIM OF LEGAL PROFESSIONAL PRIVILEGE IN RESPECT OF DOCUMENTS PRODUCED ON SUBPOENA BY JUNE WILSON

1. A subpoena has been issued at the instigation of the mCom respondents to June Wilson 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”).  A claim has been advanced on behalf of Temwell that two of those documents are protected by legal professional privilege from disclosure to the legal advisers for the mCom respondents.  I have reviewed the two documents in issue and applied to them the principles discussed in my earlier rulings of 9 September and 24 September 2003.

2. The first document comprises Ms Wilson’s handwritten notes of a conference on 23 November 2001 attended by Ms Wilson and a colleague with Counsel and solicitors for Temwell.  That appears to be no more than a record of information given to Ms Wilson and her understanding of the “exercise” which she was required to carry out.  I characterise the communications recorded by that document as instructions, suggestions or information given to Ms Wilson to enable her to furnish an expert report.  Consistently with the indication given at [6] of my ruling of 24 September 2003, it would be unfair for the claim of privilege to be sustained in respect of those communications.  That part of the claim of privilege is therefore rejected.

3. The second document, as far as I can decipher it, comprises Ms Wilson’s handwritten notes of a conference on 19 May 2003 with Senior Counsel for Temwell. I infer that Ms Wilson was then acquainted with arguments which had been advanced on behalf of the mCom respondents and views which I had expressed during argument about the admissibility of an earlier report of Ms Wilson and another expert accounting witness, Mr Rayner; see my ruling of 5 August 2003 [2003] FCA 806 at [10]-[11]. She then recorded five matters to which her attention had been directed as necessary to ring her report “up to date to March 2000.” Further notes were made in respect of some of those matters of queries or lines of enquiry which had been suggested or had occurred to Ms Wilson. Consistently with the principles applied by Lindgren J in Australian Securities and Investment Commission v Southcorp [2003] FCA 804, the claim of legal professional privilege in respect of this second document must also be rejected.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            29 September 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:	26 September 2003
Date of Ruling:	29 September 2003