FEDERAL COURT OF AUSTRALIA
Watson v AWB Limited (No 3) [2009] FCA 1174
PRACTICE AND PROCEDURE – whether access should be granted to the parties and their legal representatives to transcripts of certain examinations conducted by Australian Securities and Investments Commission pursuant to Pt 3 Div 1 of the Australian Securities and Investments Commission Act 2001 (Cth) – criminal prosecutions possible but not necessarily “on the cards” – access granted on terms
Australian Securities and Investments Commission Act 2001 (Cth), ss 13, 19–27, 63, 68, 69
Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32 cited
Hearne v Street (2008) 235 CLR 125 cited
R v Saleam [1999] NSWCCA 86 applied
Reid v Howard (1995) 184 CLR 1 citedJOHN WATSON AND KAYE WATSON IN THEIR OWN RIGHT AND AS REPRESENTATIVES OF THE GROUP MEMBERS v AWB LIMITED (ACN 081 890 459)
NSD 2020 of 2007
FOSTER J
15 OCTOBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2020 of 2007
BETWEEN: JOHN WATSON AND KAYE WATSON IN THEIR OWN RIGHT AND AS REPRESENTATIVES OF THE GROUP MEMBERS
ApplicantAND: AWB LIMITED (ACN 081 890 459)
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
15 OCTOBER 2009
WHERE MADE:
SYDNEY
THE COURT:
1.Subject to Orders 2, 3, 4, 5, 6, 7 and 8 below, the Court grants leave to those of the legal representatives of the parties named in the Schedule hereto who give to the Court an undertaking in writing duly signed that, without the prior leave of a Judge of the Federal Court of Australia, he or she will not use any of the information contained in the ASIC documents described below for any purpose other than for the purposes of these proceedings, to inspect the documents produced to the Court by Australian Securities and Investments Commission on 5 June 2009 (the ASIC documents).
2.ORDERS that the respondent have first access to the ASIC documents for a period of six days from the date of this order for the purpose of making any claim for legal professional privilege (AWB LPP Claim).
3.DIRECTS that if no AWB LPP Claim is to be made then this fact is to be communicated to the solicitors for the applicants within six days of the making of these Orders.
4.ORDERS that in the event that one or more AWB LPP Claims is made the respondent file and serve within six days of the making of this order an affidavit which:
(a) exhibits to the affidavit all ASIC documents redacted in a manner which obscures those documents or parts of documents the subject of each AWB LPP Claim; and
(b) specifies, with respect to each redaction identified in the exhibit, the basis or bases of the relevant AWB LPP Claim.
5.ORDERS that in the event of an AWB LPP Claim being made the legal representatives of the applicants not access the ASIC documents in the Registry…
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- AGLC
- Watson v AWB Limited (No 3) [2009] FCA 1174
- Case
- [2009] FCA 1174
- Decision Date
CaseChat Overview and Summary
The court resolved that the applicants' proposal for handling the privilege claims should be adopted due to the impending trial. The court emphasised the importance of maintaining confidentiality and ordered that only specified legal representatives who provided an undertaking would be allowed to inspect the ASIC documents. The respondent was given a six-day period to make any claims for legal professional privilege. If no claims were made, this fact had to be communicated to the applicants' solicitors within six days. If claims were made, the respondent was required to file an affidavit detailing the redacted documents and the basis for each claim. The applicants' legal representatives were not to access the documents until the claims were addressed. The court also granted liberty to the applicants to challenge any privilege claims before the Associate to Foster J.
The court issued detailed orders to manage the inspection and use of the ASIC documents, ensuring they were handled securely and used only for the purposes of the proceedings. These orders included provisions for photocopying the documents under strict conditions and for notifying any affected examinees if the documents were to be used in the trial. The court concluded that no party should bear the costs of the applications.
Orders
Orders of the court
1. Subject to Orders 2, 3, 4, 5, 6, 7 and 8 below, the Court grants leave to those of the legal representatives of the parties named in the Schedule hereto who give to the Court an undertaking in writing duly signed that, without the prior leave of a Judge of the Federal Court of Australia, he or she will not use any of the information contained in the ASIC documents described below for any purpose other than for the purposes of these proceedings, to inspect the documents produced to the Court by Australian Securities and Investments Commission on 5 June 2009 (the ASIC documents).
2. ORDERS that the respondent have first access to the ASIC documents for a period of six days from the date of this order for the purpose of making any claim for legal professional privilege (AWB LPP Claim).
3. DIRECTS that if no AWB LPP Claim is to be made then this fact is to be communicated to the solicitors for the applicants within six days of the making of these Orders.
4. ORDERS that in the event that one or more AWB LPP Claims is made the respondent file and serve within six days of the making of this order an affidavit which:
(a) exhibits to the affidavit all ASIC documents redacted in a manner which obscures those documents or parts of documents the subject of each AWB LPP Claim; and
(b) specifies, with respect to each redaction identified in the exhibit, the basis or bases of the relevant AWB LPP Claim.
5. ORDERS that in the event of an AWB LPP Claim being made the legal representatives of the applicants not access the ASIC documents in the Registry of the Court until further order.
6. DIRECTS that, in the event the applicants propose to challenge any AWB LPP Claim. they have liberty to approach the Associate to Foster J for the purpose of having determined such of the AWB LPP Claims as are challenged.
7. GRANTS LEAVE to those of the legal representatives of the parties named in the Schedule hereto who provide the undertaking contemplated by Order 1 above, to uplift the ASIC documents from the Registry on the date access is first granted to those representatives pursuant to these orders for the purpose of the ASIC documents being photocopied by the solicitors for that party upon the undertaking of the solicitor for the party to return the originals to the Registry of the Court within 24 hours of uplift.
8. ORDERS that no copy of the ASIC documents be provided to any person other than:
(a) the Court; or
(b) in accordance with these orders or until further order:
(i) the solicitors or Counsel for the applicants identified in the Schedule below;
(ii) the solicitors or Counsel for the respondent identified in the Schedule below.
and that, without the prior leave of a Judge of the Federal Court of Australia, the contents of the ASIC documents not be disclosed to any person other than as provided for in this Order 8.
9. ORDERS that, should either the applicants or the respondent intend to tender the ASIC documents or any part of them or to use them or any part of them in examination or cross-examination of any witness at the trial, the party intending to use that material in that fashion give as much notice as is reasonably practicable of their or its intention to any examinee affected by that intention by notifying the solicitor for such examinee of that intention.
10. GRANTS liberty to apply to all parties (including the examinees) on 48 hours’ notice.
11. ORDERS that there be no order as to the costs of the applications determined by these Orders.
SCHEDULE
Persons for the applicants who will need to see confidential material produced in answer to further amended subpoena to ASIC
1. John Sheahan SC
2. Michael Lee
3. Dale Bampton
4. Ben Slade
5. Jason Geisker
6. Jenny Tallis
7. Julian Schimmel
8. Addy Pong
Persons for the respondent who will need to see confidential material produced in answer to further amended subpoena to ASIC
1. Charles Scerri QC
2. Matthew Darke
3. Craig Phillips
4. Sally Gluyas
5. Duncan Travis
6. Eloise Dias
7. Michael Schoenberg
8. Carla Bongiorno
9. Sophie Ryan
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: FOSTER J
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