Wenkart T.R. & Anor v The Commissioner, Australian Federal Police & Ors [1995] FCA 788

CATCHWORDS PRACTICE AND PROCEDURE - subpoena - application to set aside - irrelevance of documents sought to any issue - objection by liquidator to disclosure of other documents on ground of prejudice to the course of winding up - order made for production at this stage of copies with parts blacked out - no question of principle. THOMAS RICHARD WENKART & ANOR v THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE & ORS NG 106 of 1995 Lindgren J Sydney 19 September 1995

MINUTE OF ORDERS THE COURT: NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 106 of 1995 GENERAL DIVISION ) BETWEEN: THOMAS RICHARD WENKART & GEOFFREY ALBERT HOLDEN Applicants AND: THE COMMISSIONER, AUSTRALIAN FEDERAL POLICE First Respondent MICHAEL WAYNE LUTZE Second Respondent NIKA MANAGEMENT SERVICES PTY LTD (IN LIQUIDATION) (ACN 002 770 505) (FORMERLY KNOWN AS MACQUARIE PROFESSIONAL SERVICES PTY LTD) Third Respondent CORAM: Lindgren J PLACE: Sydney DATE: 19 September 1995 REASONS FOR JUDGMENT These Reasons for Judgment are my reasons for orders which I made two days ago at the conclusion of the hearing on 19 September 1995. The applicants, who are former directors of the third respondent ("Nika"), by para 1 of an amended application filed on 23 March 1995, seek a declaration that certain documents seized by the second respondent in execution of a search warrant, obtained by the first respondent, on the offices of Greenwood and Freehills, are subject to legal professional privilege. The documents were specified in a list which is schedule A to the amended application. There are 16 documents listed in schedule A. Thus, the issue posed, at least by para 1 of the amended application, is one of legal professional privilege in relation to the 16 documents which have been seized. By a notice of motion filed on 22 May 1995 the applicants have moved the Court for an order that certain matters be determined as preliminary issues in the proceedings. One of these is whether a purported waiver of legal professional privilege referred to in a letter dated 10 May 1995, which is annexure A to the affidavit of Kenneth Raphael sworn 22 May 1995 filed in the proceedings, is a proper exercise of the powers of the liquidator of Nika. The liquidator of Nika is Mr Lord. It is common ground that Mr Lord did purport to waive legal professional privilege by the letter dated 10 May 1995. The way in which the matter comes before the Court at present is as follows. On 5 September 1995 a subpoena was issued on behalf of the applicants addressed to the liquidator of Nika, requiring that the liquidator produce four categories of documents of which the second reads as follows: "All original or copy reports to the Australian Securities Commission ('ASC'), or draft reports to the ASC with respect to Nika Management Services Pty Limited."