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) FILE NUMBER(S) : SC 1490/2007 Mr A Bannon SC/ Mr R Beech-Jones SC/ Ms D Hogan-Doran/ Ms S Pritchard / Ms J Single/ Mr A Kuklik (Plaintiff) Mr S Finch SC/ Mr D Studdy SC/ Mr D Mackay (First Defendant) Mr B Walker SC/ Mr M Holmes QC/ Mr R Lancaster/ Mr N Owens (Second Defendant) Mr B Oslington QC/ Mr R Dick/ Mr N Bender (Third Defendant) COUNSEL : Mr T Bathurst QC/ Mr R Whitington QC/ Mr R Hollo/ Mr R Hardcastle/ Mr I Colquhoun (Fourth to Seventh Defendants) Mr P Wood/ Mr M Henry (Eighth Defendant) Mr R McHugh SC/ Mr S Nixon (Ninth Defendant) Mr T Jucovic QC/ Mr R Scruby (Tenth Defendant) Mr I Pike (Eleventh Defendant) Mr A Meagher SC/ Ms K Morgan (Twelfth Defendant) Clayton Utz (Plaintiff) Minter Ellison (First Defendant) Middletons (Second Defendant) Henry Davis York (Third Defendant) SOLICITORS : Atanaskovic Hartnell (Fourth to Seventh Defendants) Arnold Bloch Leibler (Eighth Defendant) Blake Dawson (Ninth Defendant) Kemp Strang (Tenth Defendant) Baker & McKenzie (Eleventh Defendant) Mallesons Stephen Jaques (Twelfth Defendant) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J MONDAY 2 FEBRUARY 2009 1490/2007 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v PETER DONALD MACDONALD & ORS (NO 8) EX TEMPORE JUDGMENT 1 The speed with which this matter is being dispatched has lead to some problems. The three subpoenas in respect of which objections to production were made on the ground that documents are privileged documents gave a minimum of time to respond and were served on the solicitors for the 4th to 6th defendants when one or other of them was being cross-examined. 2 I accept that objections to production were made to protect the 4th to 6th defendants until proper instructions could be obtained from them. As a result of subsequent instruction, Messrs Brown and Gillfillan, the 4th and 5th defendants, have waived any privilege they may have had over all documents produced in answer to the three subpoenas and the 6th defendant, Ms Hellicar, has waived any privilege she may have had over all documents produced in answer to the 1st and 2nd subpoenas. 3 Ms Hellicar is under cross-examination. Her solicitors wrote to the solicitors for the Australian Securities and Investments Commission, the plaintiff, and to the solicitors for all other parties on 23 January 2009 seeking their consent to their speaking with Ms Hellicar to take instructions as to whether she wished to maintain her claim to privilege over the documents produced in answer to the 3rd subpoena to which objection had been taken. On 27 January 2009 the solicitors for ASIC responded stating that it did not consent. None of the other parties objected to the proposal. 4 One of the issues raised in ASIC's written submissions on this privilege issue is whether there was a solicitor client relationship between Ms Hellicar and Atanaskovic Hartnell. The submission is that the client was James Hardie Industries NV, the 12th defendant. The resolution of that issue would be unnecessary if instructions could be taken from Ms Hellicar while under cross-examination and she instructed that any claim to privilege she may have had over documents produced in answer to the 3rd subpoena she is prepared to waive. 5 In cross-examination on behalf of ASIC she gave an answer suggestive of an intent to waive privilege which I struck out for the purpose of the main proceedings but which has relevance in relation to this interlocutory matter. At transcript 3082 this exchange took place: "Q. Isn't it you who is saying that the court and the plaintiff can't see these other documents because they're privileged? A. [Strike-out begins] No, no, I'm happy for anybody to -- [Strike-out ends]." 6 There is a reasonable prospect that if instructions are taken from Ms Hellicar she may waive privilege over the remaining documents as she has with respect to the documents produced under objection in answer to the 1st and 2nd subpoenas. 7 In the interests of the just, quick and cheap resolution of the real issue with respect to this matter as prescribed by the Civil Procedure Act 2005, s 56 I would have allowed instructions to be taken from Ms Hellicar before she returns to the witness box for further cross-examination as to whether or not she maintains her claim of privilege with respect to the documents produced under objection in answer to the 3rd subpoena, being a subpoena issued to Atanaskovic Hartnell by ASIC by leave granted by me on 17 December 2008. 8 However, ASIC submits that any legal professional privilege Ms Hellicar may have had with respect to the documents is abrogated under the James Hardie (Investigations and Proceedings) Act 2004 (Cth). For the reasons I am about to give I agree with that submission. 9 It follows that the taking of instructions from Ms Hellicar is, in the circumstances, not required and I will not take the unusual step that I otherwise would have taken. 10 I order that the digital content of my reasons for judgement be entered upon the court record database after its inclusion in Caselaw. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.