Federal Court of Australia
Federal Court of Australia
TerraCom Ltd v Australian Securities and Investments Commission [2022] FCA 208 File number: NSD 796 of 2021
Judgment of: STEWART J
Date of judgment: 11 March 2022
Catchwords: EVIDENCE – privilege – legal professional privilege – at common law – whether forensic report commissioned by lawyers attracts legal professional privilege – waiver of privilege – whether privilege is waived where report is referred to in correspondence with external communication advisor – whether privilege is waived where report is referred to in open letter to shareholders to disclaim wrongdoing – whether privilege is waived where report is referred to in ASX announcement to disclaim wrongdoing – whether privilege waived over whole or part of the report PRACTICE AND PROCEDURE – privilege – legal professional privilege – at common law – where the party opposing the privilege claim opposes the Court examining the document at the invitation of the party making the privilege claim – whether Court has power to examine document to determine issue of partial waiver
Legislation: Corporations Act 2001 (Cth) s 311 Evidence Act 1995 (Cth) ss 122(2), 133 Evidence Act 1995 (NSW) ss 122(2), 133
Cases cited: Ampolex Ltd v Perpetual Trustee [1996] HCA 15; 137 ALR 28 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 40 NSWLR 12 ASIC v Australia and New Zealand Banking Group (No. 2) [2020] FCA 1013 Attorney-General (NT) v Maurice [1986] HCA 80; 161 CLR 475 Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770 AWB Ltd v Cole (No. 5) [2006] FCA 1234; 155 FCR 30 Barnes v Commissioner of Taxation [2007] FCAFC 88; 242 ALR 601 Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237; 140 FCR 101 Cantor v Audi Australia Pty Ltd [2016] FCA 1391 Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; 151 FCR 341 Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511 Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; 213 CLR 543 DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; 201 CLR 49 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 Federal Treasury Enterprise v Spirits International (No 6) [2019] FCA 337; 369 ALR 267 Grant v Downs [1976] HCA 63; 135 CLR 674 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Legal Services Commission v JHW [2012] SASCFC 47; 223 A Crim R 534 Mann v Carnell [1999] HCA 66; 201 CLR 1 New South Wales v Betfair Pty Ltd [2009] FCAFC 160; 180 FCR 543 Osland v Secretary, Department of Justice [2008] HCA 37; 234 CLR 275 Queensland Law Society v Albietz [1998] QSC 231; [2000] 1 Qd R 621 Rinehart v Rinehart [2016] NSWCA 58 Ship Hako Endeavour v Programmed Total Marine Services Pty Ltd [2013] FCAFC 21; 211 FCR 369 Switchorp Pty Ltd v Multiemedia Ltd [2005] VSC 425 University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68 Verde Terra Pty Ltd v Central Coast Council (No 2) [2020] NSWLEC 10
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