Temwell Pty Ltd v DKGR Holdings Pty Ltd

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.