Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (No 5) [2012] FCA 1226 Citation: Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (No 5) [2012] FCA 1226
Parties: OPTIVER AUSTRALIA PTY LTD and OPTIVER TRADING PTY LTD ACN 123 177 971 v TIBRA TRADING PTY LTD AND OTHERS (ACCORDING TO THE SCHEDULE)
File number: NSD 681 of 2009
Judge: RARES J
Date of judgment: 11 October 2012
Catchwords: PRACTICE AND PROCEDURE – subpoenas for production served on experts retained by party where experts did not provide expert reports – whether subpoenas should be set aside because (1) any material produced by the experts in answer to the subpoenas would be subject to legal professional privilege, or (2) the subpoenas served no legitimate forensic purpose as anything not privileged that might be produced in answer to the subpoena could not be used in evidence or tendered as an opinion PRIVILEGE – legal professional privilege – whether all documents held by an expert retained by a party were brought into existence for the dominant purpose of obtaining legal advice or for use in litigation – whether some documents capable of being categorised as notes or documents used by expert in forming an opinion – whether necessary for documents to record or be prepared in contemplation of a communication Held: arguable subpoenas will catch documents for which no claim for privilege can be sustained – not necessary that any document caught by subpoena be admissible in evidence
Legislation: Cross on Evidence (8th Australian edition) (LexisNexis Butterworths, Sydney 2010) at 882-883 [25225] Evidence Act 1995 (Cth)
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