Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985 | Case summary

Federal Court of Australia|2003-09-24|Before: Lindgren J, Ryan J

RULING No 7 ON CLAIM OF LEGAL PROFESSIONAL PRIVILEGE IN RELATION TO COMMUNICATIONS TO AND FROM APPLICANT'S EXPERT WITNESSES 1 On 9 September 2003, I published a ruling in this matter on a claim advanced on behalf of the applicant ("Temwell"), that certain communications with expert witnesses were protected by legal professional privilege; see [2003] FCA 948. That ruling was focused on file notes made by Mr Pringle, one of Temwell's solicitors, of communications with two accounting or valuation experts, Ms June Wilson and Mr Peter Rayner. 2 A call has been made on behalf of the mCom respondents for production of further documents of the same general character recording communications with the same expert witnesses and two other witnesses, Mr Zeev Goldstein and Prof Goldschlager. Mr Goldstein's evidence included expert testimony going to the description or definition of "Application Software" developed in connection with the MTD 3000. Those communications were mainly between one or other of the four experts and Mr Pringle, Mr Godfred-Spenning, Mr Horsfall, who have all acted at relevant times as solicitors for Temwell and Mr Golvan SC, Senior Counsel for Temwell. The documents have conveniently been collated by Temwell's solicitors in five schedules, one devoted to each of the four expert witnesses identified above and a fifth "Schedule of Miscellaneous Documents Relevant to the Expert Witnesses." I have adapted those schedules for the purpose of indicating, in a manner corresponding with the schedule to my earlier ruling, [2003] FCA 948, whether the claim of privilege has been sustained or rejected. Except where the reasons for adopting one or other of those classifications have been expanded below, it may be taken that I have applied the principles outlined in the earlier ruling. 3 In respect of draft reports I have continued to apply, as I understood them, the principles distilled by Lindgren J in Australian Securities and Investment Commission v Southcorp [2003] FCA 804 from which I quoted extensively at [7]-[8] of my ruling of 9 September 2003. Where a draft report has been annotated in a way which seems to record instructions or further information supplied to the expert witness or records some development of the expert's own thinking, I have rejected the claim of privilege in respect of the draft as so annotated. On the other hand, if the annotations have appeared to record an understanding by Counsel or one of the applicant's solicitors of the effect of a passage in the draft or to record suggestions made for the preparation or conduct of the applicant's case which were not directed to the provision of a fresh or revised report by the expert, I have sustained the claim of privilege. 4 At first sight it may appear difficult to reconcile the approach taken in Southcorp, which I have followed in the present case, with the result reached by the Court of Appeal of the Supreme Court of Queensland in Interchase Corporation Ltd (In Liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 QdR 141 where a claim of legal professional privilege was upheld in respect of documents in Category A described as follows; 'Letters, facsimiles and enclosures passing between Feez Ruthning as solicitors for the plaintiff and Richard Ellis regarding the Retrospective Valuation, numbered 1 to 12 inclusive, contained in a folder marked with the letter "A" and entitled "Richard Ellis - Writ of Non-Party Discovery".' [Richard Ellis was a firm of real estate valuers.] 5 However, Thomas J in that case observed at 162; 'I would hold that in general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. Privilege may however be claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation. Beyond this there is no sufficient reason why any material relevant to the formation of the expert's opinion should be subject to a claim of legal professional privilege. It is as well to add that an expert or solicitor may not artificially manufacture privilege by, for example, the expert sending his or her file to the solicitor. Documents of this kind simply are not confidential.' 6 It is not clear from the description of the Category A documents or from the reasoning of either Pincus J or Thomas J (with both of whom de Jersey J agreed) what was regarded as permitting a conclusion that a communication between an expert witness and a party's legal adviser has been made "for the purpose of confidential use in the litigation". It may be that communications of the kind to which I have adverted in [3] above, such as explanations made to enable the legal advisers to better understand the expert's opinion or suggestions of lines of cross-examination of opposing expert witnesses were regarded as confidential in that sense. At all events, I consider that, in accordance with the principles enunciated by the High Court in Attorney-General (NT) v Maurice (1986) 161 CLR 475, it would be unfair for the claim of privilege to be sustained in respect of documents which record instructions, suggestions or information given or made to an expert witness or successive draft reports from which the development of his or her expert opinion can otherwise be inferred. That is particularly so in light of the Guidelines for Expert Witnesses in this Court published as a Practice Direction on 15 September 1998 which were in force when the relevant communications were recorded. Those Guidelines included this direction under the heading "The Form of the Expert Evidence": 'There should be attached to the report, or summarised in it, the following: (i) all instructions (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report; (ii) the facts, matters and assumptions upon which the report proceeds; and (iii) the documents and other materials which the expert has been instructed to consider.' 7 In a passage from Southcorp at [5] which I have quoted at [8] of my ruling of 9 September 2003, Lindgren J discussed the treatment to be accorded to "marking up" or "tracking" which he described as having been made by a solicitor to highlight changes from one draft to another of the expert's report. That "marking up" or "tracking", his Honour regarded as a confidential communication from solicitor to counsel which attracts legal professional privilege. That may be unexceptionable as a matter of principle. However, since the same exercise could be carried out with no more than the expenditure of a little time by a reader of the two drafts, I have not undertaken the sterile task of trying to identify who "marked up" or "tracked" particular copies of draft reports which have apparently been so treated. In other words, where I have considered that, prima facie, a claim to privilege should be rejected in respect of a draft report, I have not departed from that conclusion simply because the relevant copy has been "marked up" or "tracked." 8 It was drawn to my attention in the course of oral submissions on the morning of 22 September 2003, that certain file notes made by Mr Pringle, a solicitor for Temwell, were divisible into discrete parts, only one or more of which recorded communications to or from expert witnesses so as to lose the legal professional privilege which has been claimed for the whole document. I have therefore ruled that the claim as to the file notes of 30 March 2001 at 9.30 am, 17 August 2001 and 20 May 2003 should be rejected only in respect of those parts recording communications to or from Prof Goldschlager. A similar approach has been taken to Mr Pringle's file note of 21 February 2003 and his conference note of 19 May 2003 in relation to Mr Rayner. 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: 24 September 2003 Counsel for the Applicant Mr C D Golvan SC with Dr S Ricketson and Cross Respondents:

Solicitors for the Applicant Meerkin & Apel and Cross Respondents:

Counsel for the mCom Respondents Mr J L Sher QC with Mr J Delany and Cross-Claimants:

Solicitors for the mCom Respondents Minter Ellison and Cross-Claimants:

Counsel for Mr Elbaum Mr M Goldblatt and D&E Consulting Pty Ltd:

Solicitors for Mr Elbaum Walker Herceg and D&E Consulting Pty Ltd

Dates of Hearing: 12 and 22 September 2003

Date of Ruling: 24 September 2003

SCHEDULE OF DOCUMENTS RELEVANT TO THE WITNESS PETER RAYNER 1. Privileged documents which the Applicant submits ought not be produced to the Respondents Date Description Ruling on Claim of Privilege Correspondence 16/04/2002 E-mail from Peter Rayner to Andrew Godfred-Spenning including chain of e-mails from commencing 16/04/2002 Sustained 17/04/2002 E-mail from Peter Rayner to Andrew Godfred-Spenning including CV Sustained 23/04/2002 E-mail from Peter Rayner to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Peter Rayner of 23/04/2002 Sustained 27/05/2002 E-mail from Peter Rayner to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Peter Rayner of 27/05/2002 Sustained 5/06/2002 E-mail from Peter Rayner to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Peter Rayner of 5/06/2002 Sustained 28/06/2002 Letter from Peter Rayner to David Pringle Rejected 2/07/2002 Letter from David Pringle to Peter Rayner Rejected 3/07/2002 E-mail from Peter Rayner to David Pringle including Memo of 15/05/2002 (19:27) Rejected 3/07/2002 E-mail from Peter Rayner to David Pringle (19:36) Rejected 5/07/2002 Letter from David Pringle to Peter Rayner including final Deloittes report (enclosure not included) Rejected 16/07/2002 E-mail from Peter Rayner to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Peter Rayner of 16/07/2002 Sustained 17/07/2002 E-mail from David Pringle to Peter Rayner including chain of e-mails from-mails commencing 16/07/2002 Sustained 22/07/2002 Account Letter from Peter Rayner to David Pringle Rejected 24/07/2002 E-mail from Cristina Zelante to David Pringle including letter dated 22/07/2002 (noted as 17/07/2002) (11:31) Sustained 24/07/2002 E-mail from Peter Rayner to David Pringle including draft Report dated July 2002 (17:28) Sustained 30/07/2002 E-mail from Peter Rayner to David Pringle (attachment not available) (13:05) Sustained 30/07/2002 E-mail from David Pringle to Peter Rayner(attachment not available) (16:00) Rejected 31/07/2002 E-mail from Peter Rayner to David Pringle (attachment not available) Sustained 6/08/2002 Account Letter from Peter Rayner to David Pringle Rejected 19/08/2002 E-mail from Denise Claessen to Cristina Zelante Sustained 23/08/2002 Letter from Peter Rayner to David Pringle Sustained 24/01/2002 Letter from David Pringle to Peter Rayner Sustained 28/01/2003 Letter from Peter Rayner to David Pringle Sustained 11/02/2003 E-mail from David Pringle to Peter Rayner including chain of e-mails from-mails commencing 10/02/2003 Sustained 28/03/2002 E-mail from David Pringle to Peter Rayner Sustained 31/03/2003 E-mail from Peter Rayner to David Pringle in response to e-mail from David Pringle to RP dated 28/03/2003 Sustained 8/04/2003 E-mail from Peter Rayner to David Pringle including chain of e-mails from-mails commencing 8/04/2003 Sustained 15/04/2003 E-mail from Peter Rayner to David Pringle including draft Supplementary Report Rejected 16/04/2003 E-mail from Peter Rayner to David Pringle Sustained 17/04/2003 E-mail from Andrew Godfred-Spenning to Peter Rayner Sustained 7/05/2003 E-mail from Peter Rayner to David Pringle (16:07) Rejected 7/05/2003 E-mail from Peter Rayner to David Pringle including draft Independent Expert Report dated 7 May 2003 (16:59) Rejected 9/05/2003 E-mail from Andrew Godfred-Spenning to Peter Rayner (13:22) Rejected 9/05/2003 E-mail from Cristina Cottrell to David Pringle including draft Reports (15:04) Rejected 8/05/2003 E-mail from Cristina Cottrell to David Pringle including draft Reports Rejected 9/05/2003 E-mail from Cristina Cottrell to David Pringle (15:05) Sustained 9/05/2003 E-mail from Cristina Cottrell to David Pringle including draft Supplementary Report (15:09) Rejected 9/05/2003 E-mail from Andrew Godfred-Spenning to Peter Rayner including draft Rayner affidavit (15:35) Rejected 9/05/2003 E-mail from Andrew Godfred-Spenning to Peter Rayner including draft affidavit exhibit sheets (15:42) Sustained 21/05/2003 E-mail from David Pringle to Phillip Rundle including draft Independent Expert Report dated 9 May 2003 Rejected 28/05/2003 E-mail from David Pringle to Phillip Rundle including draft Supplementary Report Rejected 13/06/2003 E-mail from Cristina Cottrell to David Pringle including CV (17:23) Rejected 13/06/2003 E-mail from David Pringle to Cristina Cottrell in response to e-mail from Cristina Cottrell to David Pringle (17:42) Rejected 15/06/2003 E-mail from Cristina Cottrell to David Pringle including draft Reports (18:54) Rejected 15/06/2003 E-mail from Colin Golvan to Cristina Cottrell and David Pringle including draft Reports (21:12) Rejected 15/06/2003 E-mail from Colin Golvan to Cristina Cottrell and David Pringle including draft Particulars of Loss and Damage (21:57) Rejected 16/06/2003 E-mail from Peter Rayner to Colin Golvan (9:47) Sustained 16/06/2003 E-mail from Phillip Rundle to Chris Horsfall (11:03) Rejected 16/06/2003 E-mail from Cristina Cottrell to David Pringle including draft Reports (12:31) Rejected 16/06/2003 E-mail from Cristina Cottrell to David Pringle including draft Independent Expert Report dated 16 June 2003 (18:33) Rejected 16/06/2003 E-mail from Cristina Cottrell to David Pringle including final Independent Expert Report dated 16 July 2003 (19:04) Rejected 19/06/2003 E-mail from David Pringle to Peter Rayner including draft Independent Expert Report dated 16 June 2003 (15:31) Rejected 19/06/2003 E-mail from David Pringle to Peter Rayner including Supplementary Report dated 16 June 2003 (15:50) Rejected 19/06/2003 E-mail from David Pringle to Peter Rayner including draft Particulars of Loss and Damage (15:52) Rejected 19/06/2003 E-mail from Cristina Cottrell to David Pringle including amended Rayner Reports (18:15) Rejected 16/07/2003 Letter from David Pringle to Peter Rayner re trial dates Sustained 17/07/2003 E-mail from Peter Rayner to Chris Horsfall Sustained 3/09/2003 E-mail from David Pringle to Peter Rayner in response to e-mail from Peter Rayner to David Pringle of 3/09/2003 Sustained Filenotes And Conference Notes 16/04/2002 Filenote of Andrew Godfred-Spenning Sustained 17/04/2002 Filenote of Andrew Godfred-Spenning Sustained 23/04/2002 Filenote of Andrew Godfred-Spenning Sustained 26/04/2002 Filenote of Andrew Godfred-Spenning Sustained 1/05/2002 Filenote of David Pringle Sustained 8/05/2002 Filenote of David Pringle Sustained 27/05/2002 Filenote of Andrew Godfred-Spenning Sustained 4/06/2002 Filenote of Andrew Godfred-Spenning Sustained 5/06/2002 Filenote of Andrew Godfred-Spenning Sustained 12/06/2002 Filenote of David Pringle Rejected 17/06/2002 Filenote of Andrew Godfred-Spenning Sustained 19/06/2002 Filenote of Andrew Godfred-Spenning Rejected 20/06/2002 Filenote of Andrew Godfred-Spenning Rejected 20/06/2002 Filenote of Andrew Godfred-Spenning Rejected 20/06/2002 Filenote of Andrew Godfred-Spenning Rejected 24/06/2002 Filenote of Andrew Godfred-Spenning Rejected 26/06/2002 Filenote of Andrew Godfred-Spenning Rejected 3/07/2002 Filenote of Andrew Godfred-Spenning Rejected 4/07/2002 Conference Note of Andrew Godfred-Spenning Rejected 16/07/2002 Filenote of Andrew Godfred-Spenning Sustained 19/07/2002 Filenote of Andrew Godfred-Spenning Rejected 22/07/2002 Filenote of David Pringle Sustained 23/07/2002 Conference Note of Andrew Godfred-Spenning Rejected 30/07/2002 Conference Note of Andrew Godfred-Spenning Rejected 20/02/2003 Filenote of Andrew Godfred-Spenning Sustained 21/02/2003 Filenote of David Pringle Rejected as to part 19/03/2002 Conference Note of Andrew Godfred-Spenning Rejected 26/03/2003 Filenote of David Pringle Sustained 26/03/2003 Filenote of David Pringle Sustained 15/04/2003 Filenote of Andrew Godfred-Spenning Sustained 29/04/2003 Conference Note of Andrew Godfred-Spenning Sustained 29/04/2003 Filenote of David Pringle Sustained 30/04/2003 Filenote of David Pringle Sustained 1/05/2003 Filenote of David Pringle Sustained 6/05/2003 Filenote of Andrew Godfred-Spenning at 2.05 pm Sustained 7/05/2003 Conference Note of Andrew Godfred-Spenning Rejected 8/05/2003 Filenote of Andrew Godfred-Spenning of telephone to Peter Rayner Sustained 8/05/2003 Filenote of Andrew Godfred-Spenning of telephone to Phillip Rundle Sustained Conference Note of David Pringle Rejected as to part 19/05/2003 5/06/2003 Filenote of Chris Horsfall Sustained 10/06/2003 Filenote of Chris Horsfall Sustained

Privileged documents which arguably fall within category of documents which the court may direct to be disclosed (per Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948) Date Description Ruling on Claim of Privilege Correspondence 8/05/2002 Letter from David Pringle to Peter Rayner Rejected 31/05/2002 Letter from Peter Rayner to David Pringle Rejected 4/06/2002 E-mail from Peter Rayner to Andrew Godfred-Spenning including Letter of Engagement Rejected 7/06/2002 Letter from David Pringle to Peter Rayner Rejected 11/06/2002 Letter from David Pringle to Peter Rayner Rejected 12/06/2002 Letter from David Pringle to Peter Rayner Rejected 17/06/2002 E-mail from Andrew Godfred-Spenning to Peter Rayner Rejected 20/06/2002 Letter from David Pringle to Peter Rayner Rejected 5/07/2002 LDP to Peter Rayner (enclosures not available) Rejected 17/07/2002 E-mail from Peter Rayner to David Pringle including draft Independent Expert Report dated July 2002 Rejected 19/07/2002 E-mail from Peter Rayner to David Pringle including draft Independent Expert Report dated July 2002 Rejected 24/07/2002 E-mail from Andrew Godfred-Spenning to Peter Rayner Rejected 29/07/2002 Fax from Andrew Godfred-Spenning to Peter Rayner including financial documents Rejected 31/07/2002 E-mail from Peter Rayner to David Pringle including Final Independent Expert Report Rejected 31/07/2002 Final Independent Expert Report dated 31 July 2002 Rejected 8/04/2003 Letter from David Pringle to Peter Rayner including COA schedule Rejected 14/04/2003 Letter from David Pringle to Peter Rayner Rejected 1/05/2003 Letter from David Pringle to Peter Rayner including various financial documents Rejected 2/05/2003 Letter from David Pringle to Peter Rayner Rejected 7/05/2003 E-mail from Phillip Rundle to David Pringle including draft Independent Expert Report dated 7 May 2003 Rejected 8/05/2003 Letter from David Pringle to Peter Rayner Rejected 29/05/2003 Letter from David Pringle to Peter Rayner including ANZ Acknowledgement Rejected 29/05/2003 Letter from David Pringle to Peter Rayner including extracts of Kiefel affidavit Rejected 3/06/2003 Letter from David Pringle to Peter Rayner including schedule Rejected 10/06/2003 Letter from David Pringle to Peter Rayner including Goldstein affidavit (attachment not included) Rejected 13/06/2003 E-mail from David Pringle to Peter Rayner including preliminary report of Les Goldschlager (14:11) Rejected 13/06/2003 E-mail from David Pringle to Peter Rayner including draft Report of June Wilson dated 13/06/2003 (referred to in List of Documents dated 8/9/2003) (17:39) Rejected 16/06/2003 E-mail from Peter Rayner to David Pringle including filenote (11:03) Rejected 16/06/2003 E-mail from David Pringle to Peter Rayner including draft Report of June Wilson dated 16/06/2003 (referred to in List of Documents dated 8/9/2003) (15:13) Rejected 17/06/2003 Letter from David Pringle to Peter Rayner including Rayner affidavit (enclosure not included) Rejected 19/06/2003 E-mail from David Pringle to Peter Rayner and June Wilson including amended June Wilson report dated 19/06/2003 (15:28) Rejected 19/06/2003 E-mail from David Pringle to Peter Rayner including final June Wilson report dated 19 June 2003 (17:40) Rejected 20/06/2003 Letter from David Pringle to Peter Rayner including sworn Rayner and Wilson affidavits (enclosures not included) Rejected Filenotes And Conference Notes 3/07/2002 Filenote of David Pringle Rejected 9/04/2003 Filenote of Andrew Godfred-Spenning Rejected 7/05/2003 Conference Note of Andrew Godfred-Spenning Rejected 8/05/2003 Filenote of Andrew Godfred-Spenning Rejected

SCHEDULE OF DOCUMENTS RELEVANT TO THE WITNESS JUNE WILSON

Privileged documents which the Applicant submits ought not be produced to the Respondents Date Description Ruling on Claim of Privilege Correspondence 15/11/2001 Letter from John Spender to June Wilson Rejected 26/11/2001 Letter from June Wilson to Andrew Godfred Sustained 6/12/2001 With compliments slip from June Wilson Sustained 6/12/2001 Letter from June Wilson to David Pringle Rejected 10/12/2001 E-mail from Shirley Block to Shirley Block Sustained 10/12/2001 E-mail from Katie Jones to David Pringle including Engagement Letter of 6/12/2001 Rejected 17/12/2001 Letter from David Pringle to June Wilson including signed Engagement Letter Rejected 21/12/2001 E-mail from June Wilson to David Pringle including Draft Report of 21/12/2001 Rejected 8/01/2002 E-mail from Andrew Godfred-Spenning to June Wilson in response to E-mail from June Wilson to David Pringle of 8/01/2002 Sustained 25/01/2002 Letter from David Pringle to June Wilson Rejected 13/02/2002 With Compliments slip from June Wilson to Andrew Godfred-Spenning Sustained 13/02/2002 Letter from June Wilson to David Pringle including Final Report dated February 2002 Rejected 21/03/2002 E-mail from June Wilson to Andrew Godfred-Spenning including Letter from June Wilson to David Pringle of 21/03/2002 Rejected 21/03/2002 Letter from June Wilson to David Pringle Rejected 25/07/2002 E-mail from June Wilson to Andrew Godfred-Spenning in response to E-mail from Andrew Godfred-Spenning to June Wilson of 25/07/2002 including June Wilson affidavit (attachment not available) Sustained 24/01/2003 Letter from David Pringle to June Wilson Sustained 7/02/2003 Letter from June Wilson to David Pringle Sustained 17/04/2003 E-mail from June Wilson to Andrew Godfred-Spenning in response to E-mail from Andrew Godfred-Spenning to June Wilson 17/04/2003 Sustained 8/05/2003 E-mail from Andrew Godfred-Spenning to June Wilson in response to E-mail from June Wilson to Andrew Godfred-Spenning of 8/05/2003 including CV Sustained 20/05/2003 E-mail from June Wilson to David Pringle including additional CV material (11:11) Rejected 20/05/2003 E-mail from June Wilson to Chris Horsfall including copy of Final Report dated 21 December 2001 (14:47) Sustained 4/06/2003 E-mail from June Wilson to David Pringle Rejected 4/06/2003 E-mail from David Pringle to June Wilson Rejected 13/06/2003 E-mail from June Wilson to David Pringle including draft Report dated 13/06/2003 Rejected 16/06/2003 E-mail from David Pringle to June Wilson including draft Report dated 16/06/2003 (10:24) Rejected 16/06/2003 E-mail from June Wilson to David Pringle including draft Report dated 16/06/2003 (15:06) Rejected 16/06/2003 E-mail from June Wilson to David Pringle including draft Report (noted as final report) (18:34) Rejected 17/06/2003 E-mail from June Wilson to David Pringle including additional CV material (11:26) Rejected 17/06/2003 E-mail from June Wilson to CV in response to E-mail from David Pringle to June Wilson of 17/06/2003 including additional CV material (12:25) Rejected 17/06/2003 E-mail from June Wilson to David Pringle including revised CV (14:09) Rejected 17/06/2003 E-mail from David Pringle to June Wilson (14:47) Sustained 17/06/2003 E-mail from June Wilson to David Pringle (18:37) Rejected 18/06/2003 E-mail from Colin Golvan to June Wilson including draft Report dated June 2003 (21:45) Rejected 18/06/2003 E-mail from David Pringle to Colin Golvan copied to June Wilson (22:08) Sustained 19/06/2003 E-mail from Colin Golvan to June Wilson including draft Report dated June 2003 (marked as final) (9:03) Rejected 19/06/2003 E-mail from GC to David Pringle copied to June Wilson including draft Report dated June 2003 (marked as final) (14:56) Rejected 19/06/2003 E-mail from June Wilson to David Pringle including final Report (17:37) Rejected 3/07/2003 E-mail from June Wilson to David Pringle including chain of e-mails commencing 3/07/2003 (10:01) Sustained 3/07/2003 E-mail from June Wilson to David Pringle in response to E-mail from David Pringle to June Wilson of 3/07/2003 (10:31) Sustained 11/07/2003 E-mail from David Pringle to June Wilson including chain of e-mails commencing 3/07/2003 Sustained 16/07/2003 Letter from David Pringle to June Wilson Sustained 17/07/2003 E-mail from Chris Horsfall to June Wilson Sustained 21/07/2003 E-mail from June Wilson to Chris Horsfall Sustained Filenotes And Conference Notes 12/11/2001 Filenote of Andrew Godfred-Spenning Sustained 15/11/2001 Filenote of Andrew Godfred-Spenning Sustained 21/11/2001 Filenote of Andrew Godfred-Spenning Sustained 13/12/2001 Filenote of Andrew Godfred-Spenning Sustained 19/12/2001 Filenote of Andrew Godfred-Spenning Sustained 25/01/2002 Filenote of Andrew Godfred-Spenning Sustained 25/01/2002 Filenote of Andrew Godfred-Spenning Sustained 29/01/2002 Filenote of Andrew Godfred-Spenning Sustained 13/02/2002 Filenote of Andrew Godfred-Spenning Rejected 8/05/2003 Filenote of Andrew Godfred-Spenning Rejected 20/05/2003 Filenote of Andrew Godfred-Spenning Sustained 21/05/2003 Filenote of Andrew Godfred-Spenning Sustained 23/05/2003 Filenote of Andrew Godfred-Spenning Sustained 24/06/2003 Conference Note of David Pringle Sustained

Privileged documents which arguably fall within category of documents which the court may direct to be disclosed (per Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948) Date Description Ruling on Claim of Privilege Correspondence 23/11/2001 Fax of June Wilson to David Pringle including CVs of Colin Wight and June Wilson Rejected 7/02/2002 Letter from David Pringle to June Wilson Rejected 8/05/2003 E-mail from June Wilson to David Pringle including CV Rejected 8/05/2003 E-mail from Andrew Godfred-Spenning to June Wilson Rejected 26/05/2003 Letter from June Wilson to David Pringle including Letter of Engagement dated 26/05/2003 Rejected 27/05/2003 Fax of David Pringle to June Wilson Rejected 3/06/2003 Letter from David Pringle to June Wilson Rejected 12/06/2003 E-mail from June Wilson to DP including draft Report dated 12/06/2003 (referred to in List of Documents dated 8/9/2003) Rejected 13/06/2003 E-mail from David Pringle to June Wilson including e-mail from Les Goldschlager Rejected 16/06/2003 E-mail from David Pringle to June Wilson including draft Rayner Reports (10:26) Rejected 16/06/2003 E-mail from David Pringle to Colin Golvan and June Wilson including draft Rayner Reports (marked final) (13:06) Rejected 17/06/2003 Letter from David Pringle to June Wilson including sworn June Wilson affidavit (enclosure not provided) Rejected 19/06/2003 E-mail from David Pringle to June Wilson and Peter Rayner including draft Wilson Report (15:28) Rejected 19/06/2003 E-mail from June Wilson to David Pringle including final Report (17:37) Rejected 20/06/2003 Letter from David Pringle to June Wilson including sworn June Wilson affidavit (enclosure not provided) Sustained Filenotes And Conference Notes

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SCHEDULE OF DOCUMENTS RELEVANT TO THE WITNESS ZEEV GOLDSTEIN

Privileged documents which the Applicant submits ought not be produced to the Respondents Date Description Ruling on Claim of Privilege 31/03/2003 Filenote of David Pringle Sustained 1/04/2003 Filenote of David Pringle Rejected 7/04/2003 Filenote of David Pringle Sustained 8/04/2003 Filenote of David Pringle Sustained 15/04/2003 Filenote of David Pringle Sustained 8/05/2003 Filenote of David Pringle Sustained 3/06/2003 Filenote of David Pringle (9:30) Sustained 3/06/2003 Filenote of David Pringle (11:50) Sustained 24/04/2003 Conference Note of David Pringle Sustained 5/05/2003 Filenote of David Pringle Sustained 7/05/2003 Conference Note of Andrew Godfred-Spenning Sustained 13/05/2003 E-mail from Zeev Goldstein to David Pringle including chain of e-mails commencing 11/05/2003 Sustained 29/05/2003 E-mail from Zeev Goldstein to David Pringle Sustained 3/06/2003 Conference Note of David Pringle (2:30) Sustained 3/06/2003 Conference Note of David Pringle (3:00) Sustained 4/06/2003 Conference Note of David Pringle Sustained 5/06/2003 Conference Note of David Pringle (9:30) Sustained 5/06/2003 Conference Note of David Pringle (3:00) Sustained 6/06/2003 Filenote of David Pringle (11:28) Sustained 6/06/2003 Filenote of David Pringle (10:54) Sustained 6/06/2003 Conference Note of David Pringle Sustained 6/06/2003 Filenote of David Pringle (6:05) Sustained 14/06/2003 E-mail from Zeev Goldstein Effie Bonaccurso and David Pringle Sustained 11/08/2003 Filenote of David Pringle Sustained 13/08/2003 Filenote of Zeev Goldstein Sustained 16/08/2003 E-mail from Zeev Goldstein David Pringle Sustained 28/08/2003 E-mail from Chris Horsfall to Zeev Goldstein including MTD diagram Sustained 31/08/2003 Conference Note of David Pringle Sustained 1/09/2003 Filenote of David Pringle Sustained 3/09/2003 Filenote of Chris Horsfall Sustained

Privileged documents which arguably fall within category of documents which the court may direct to be disclosed (per Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948) Date Description Ruling on Claim of Privilege 8/08/2003 Fax from David Pringle to Zeev Goldstein including extracts of affidavits of David Hains, Yaron Ivry and Ken Hansen Rejected

SCHEDULE OF DOCUMENTS RELEVANT TO THE WITNESS PROFESSOR LESLIE MICHAEL GOLDSCHLAGER

Privileged documents which the Applicant submits ought not be produced to the Respondents Date Description Ruling on Claim of Privilege Correspondence 20/02/2001 Letter from David Pringle to Les Goldschlager Rejected 27/02/2001 E-mail from Les Goldschlager to David Pringle including biography Rejected 26/03/2001 E-mail from David Pringle to Les Goldschlager including Confidentiality Undertaking Rejected 9/04/2001 E-mail from David Pringle to Les Goldschlager in response to e-mail from Les Goldschlager to David Pringle of 9/04/2001 including draft Report Rejected 15/08/2001 E-mail from Les Goldschlager to David Pringle in response to e-mail from David Pringle to Les Goldschlager of 14/08/2001 Sustained 22/08/2001 E-mail from David Pringle to Les Goldschlager including draft affidavit Rejected 27/08/2001 E-mail from David Pringle to Les Goldschlager including draft affidavit Rejected 22/04/2002 E-mail from David Pringle to Les Goldschlager Sustained 22/07/2002 E-mail from Andrew Godfred-Spenning to Les Goldschlager including chain of e-mails from commencing 18/07/2002 Rejected 3/03/2003 E-mail from Les Goldschlager to Andrew Godfred-Spenning including draft Report dated 3/03/2003 Rejected 4/03/2003 E-mail from Les Goldschlager to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Les Goldschlager of 4/03/2003 including draft Report dated 3/03/2003 Rejected 5/03/2002 E-mail from Andrew Godfred-Spenning to Les Goldschlager including draft Report dated 3/03/2003 Rejected 17/04/2003 E-mail from Les Goldschlager to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Les Goldschlager of 17/04/2003 Sustained 12/06/2003 E-mail from David Pringle to Les Goldschlager Sustained 13/06/2003 E-mail from David Pringle to Les Goldschlager Sustained 16/06/2003 E-mail from Chris Horsfall to Les Goldschlager including draft Report dated 16/06/2003 Rejected 16/07/2003 Letter from David Pringle to Les Goldschlager Sustained 17/07/2003 E-mail from Chris Horsfall to Les Goldschlager Sustained 18/07/2003 E-mail from Les Goldschlager to Chris Horsfall including draft Report dated 18/07/2003 (11:43) Rejected 18/07/2003 E-mail from Les Goldschlager to Chris Horsfall (15:22) Rejected Filenotes And Conference Notes 19/02/2001 Filenote of David Pringle Sustained 23/03/2001 Filenote of David Pringle Sustained 26/03/2001 Conference Note of David Pringle Rejected 28/03/2001 Filenote of David Pringle Rejected 30/03/2001 Filenote of David Pringle (9:30) Rejected as to part 30/03/2001 Draft letter to Griffith Hack with notations Sustained 30/03/2001 Filenote of David Pringle (3:30) Sustained 2/04/2001 Filenote of David Pringle (11:45) Sustained 2/04/2001 Filenote of David Pringle (10:00) Rejected 9/04/2001 Filenote of David Pringle (8:49) Rejected 9/04/2001 Filenote of David Pringle (4:35) Sustained 10/04/2001 Filenote of David Pringle Sustained 16/04/2001 Filenote of David Pringle Rejected 23/05/2001 Filenote of David Pringle Sustained 29/05/2001 Filenote of David Pringle Rejected 1/06/2001 Conference Note of David Pringle Sustained 13/06/2001 Filenote of David Pringle Rejected 17/08/2001 Conference Note of David Pringle Pg 1 Rejected as to part. Pg 2 and following Sustained 21/08/2001 Filenote of David Pringle Rejected 16/10/2001 Filenote of Andrew Godfred-Spenning Sustained 1/11/2001 Filenote of Andrew Godfred-Spenning Rejected 22/04/2002 Filenote of David Pringle Sustained 6/06/2002 Filenote of Andrew Godfred-Spenning Sustained 5/07/2002 Filenote of Andrew Godfred-Spenning (10:02) Sustained 5/07/2002 Filenote of Andrew Godfred-Spenning Sustained 8/07/2002 Conference Note of Andrew Godfred-Spenning Rejected 8/07/2002 Conference Note of David Pringle Sustained 8/07/2002 Filenote of Andrew Godfred-Spenning (4:45) Rejected 18/07/2002 Filenote of Andrew Godfred-Spenning Rejected 19/07/2002 Filenote of Andrew Godfred-Spenning Sustained 22/07/2002 Filenote of Andrew Godfred-Spenning Rejected 25/07/2002 Filenote of David Pringle Sustained 6/08/02 Filenote of Andrew Godfred-Spenning Sustained 7/8/02 Filenote of Andrew Godfred-Spenning Sustained 11/02/2003 Filenote of David Pringle Sustained 17/02/2003 Filenote of Andrew Godfred-Spenning Sustained 20/02/2003 Filenote of Andrew Godfred-Spenning Sustained 24/02/2003 Filenote of Andrew Godfred-Spenning Sustained 28/02/2003 Filenote of David Pringle Sustained 28/02/2003 Filenote of Andrew Godfred-Spenning Sustained 11/04/2003 Filenote of Andrew Godfred-Spenning Sustained 14/04/2003 Filenote of Andrew Godfred-Spenning Rejected 20/05/2003 Conference Note of David Pringle Pg 1 Rejected as to part Pg 2 Sustained 22/05/2003 Filenote of Andrew Godfred-Spenning Sustained 29/05/2003 Filenote of Chris Horsfall Sustained 12/06/2003 Filenote of David Pringle Rejected 1/07/2003 Filenote of Chris Horsfall Sustained 15/07/2003 Filenote of David Pringle Sustained 18/07/2003 Filenote of Chris Horsfall Rejected 18/07/2003 Filenote of David Pringle (3:30) Rejected 18/07/2003 Filenote of David Pringle (5:05) Sustained

Privileged documents which arguably fall within category of documents which the court may direct to be disclosed (per Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948) Date Description Ruling on Claim of Privilege Correspondence 9/04/2001 E-mail from Les Goldschlager to David Pringle including draft Report dated 9/04/2001 Rejected 10/04/2001 E-mail from Les Goldschlager to David Pringle including Report dated 10/04/2001 Rejected 10/04/2001 E-mail from Les Goldschlager to David Pringle including Report dated 10/04/2001 Rejected 27/08/2001 Letter from David Pringle to Les Goldschlager including Federal Court guidelines Rejected 9/10/2001 Letter from David Pringle to Les Goldschlager Rejected 8/07/2002 Letter from David Pringle to Les Goldschlager including exhibit 'LG3' to Goldschlager affidavit (enclosure not included) Rejected 19/07/2002 Letter from David Pringle to Les Goldschlager (enclosures not included) Rejected 25/07/2002 Fax from Les Goldschlager to David Pringle Rejected 31/07/2002 Letter from David Pringle to Les Goldschlager Rejected 11/02/2003 E-mail from Les Goldschlager to David Pringle Rejected 17/02/2003 Letter from Andrew Godfred-Spenning to Les Goldschlager including various technical documents and affidavits of Conn, G Farrar (enclosures not included) Rejected 24/02/2003 Letter from Andrew Godfred-Spenning to Les Goldschlager including MTD300 disk and affidavits of Conn and G Farrar (enclosures not included) Rejected 25/02/2003 Letter from Andrew Godfred-Spenning to Les Goldschlager including affidavit of P Farrar (enclosure not included) Rejected 26/02/2003 E-mail from Les Goldschlager to Andrew Godfred-Spenning including draft Report dated 26/02/2003 Rejected 26/02/2003 E-mail from Andrew Godfred-Spenning to Les Goldschlager including Federal Court guidelines Rejected 3/03/2003 Letter from David Pringle to Les Goldschlager Rejected 5/03/2003 Letter from Andrew Godfred-Spenning to Les Goldschlager including sworn Goldschlager affidavit (enclosure not included) Rejected 14/04/2003 Letter from David Pringle to Les Goldschlager including MacGregor affidavit (enclosure not included) Rejected 22/05/2003 Letter from David Pringle to Les Goldschlager Rejected 28/05/2003 Letter from David Pringle to Les Goldschlager including disk of software from Dr Steve Roberts (enclosure not included) Rejected 3/06/2003 Letter from David Pringle to Les Goldschlager Rejected 12/06/2003 E-mail from Les Goldschlager to David Pringle including salary survey Rejected 16/06/2003 E-mail from Les Goldschlager to David Pringle including CV in response to e-mail from David Pringle to Les Goldschlager of 13/06/2003 Sustained 17/06/2003 E-mail from Les Goldschlager to David Pringle including draft Report dated 17/06/2003 Rejected 17/06/2003 Letter from David Pringle to Les Goldschlager including sworn Goldschlager affidavit Rejected 27/06/2003 Letter from David Pringle to Les Goldschlager Rejected 1/07/2003 E-mail from Les Goldschlager to David Pringle Rejected 15/07/2003 Letter from David Pringle to Les Goldschlager including various correspondence Rejected 18/07/2003 E-mail from Les Goldschlager to David Pringle including draft Report dated 18/07/2003 Rejected 22/07/2003 Letter from David Pringle to Les Goldschlager including sworn Goldschlager affidavit Rejected Filenotes And Conference Notes 24/07/2002 Filenote of Andrew Godfred-Spenning Rejected 31/07/2002 Filenote of Andrew Godfred-Spenning Rejected 24/02/2003 Filenote of David Pringle Rejected

SCHEDULE OF MISCELLANEOUS DOCUMENTS RELEVANT TO THE EXPERT WITNESSES

Privileged documents which the Applicant submits ought not be produced to the Respondents Date Description Ruling on Claim for Privilege Documents Which Relate To More Than One Of The Expert Witnesses (File/Conference Notes) 10/06/2003 Filenote of Chris Horsfall Sustained 19/06/2001 Filenote of David Pringle Sustained 19/06/2003 Filenote of David Pringle Rejected Redacted Conference Notes 23/11/2001 Conference Note of Andrew Godfred-Spenning Rejected 8/05/2002 Conference Note of Andrew Godfred-Spenning Rejected 21/02/2003 Conference Note of Andrew Godfred-Spenning Rejected 27/05/2003 Conference Note of Chris Horsfall Rejected

Temwell Pty Ltd v DKGR Holdings Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (3)

Cited By (1)