Australian Securities and Invesments Commission v Macdonald (No 8) [2009] NSWSC 12

New South Wales Supreme Court

CITATION : Australian Securities and Invesments Commission v Macdonald (No 8) [2009] NSWSC 12

HEARING DATE(S) : 2 February 2009 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 2 February 2009

DECISION : No order.

CATCHWORDS : EVIDENCE - Client Legal Privilege - Claim to privilege taken in answer to a subpoena served on solicitor while witness said to be his client under cross-examination to preserve interests - Request to take the instructions on whether witness waived privilege rejected - Prospect that witness would waive privilege as had done with respect to earlier subpoenas - If waived argument that no client solicitor relationship need not be determined - Whether Civil Procedure Act 2005, s 56 and the just, quick and cheap resolution of the real issue with respect to the claim for privilege justified the Court granting leave to the solicitor to take instructions on waiver before the cross-examination continued - supervening consideration whether any privilege, abrogated under s 4(1) of the James Hardie (Investigations and Proceedings) Act 2004 (Cth)

LEGISLATION CITED : Civil Procedure Act 2005 James Hardie (Investigations and Proceedings) Act 2004 (Cth)

Australian Securities and Investments Commission (Plaintiff) Peter Donald Macdonald (First Defendant) Peter James Shafron (Second Defendant) Phillip Graham Morley (Third Defendant) Michael Robert Brown (Fourth Defendant) Michael John Gillfillan (Fifth Defendant) PARTIES : Meredith Hellicar (Sixth Defendant) Martin Koffel (Seventh Defendant) Geoffrey Frederick O'Brien (Eighth Defendant) Gregory James Terry (Ninth Defendant) Peter John Willcox (Tenth Defendant) ABN 60 Pty Ltd (Eleventh Defendant) James Hardie Industries NV (Twelfth Defendant)