Australian Securities and Investments Commission v Macdonald (No 9) [2009] NSWSC 13

New South Wales Supreme Court

CITATION : Australian Securities and Investments Commission v Macdonald (No 9) [2009] NSWSC 13

JUDGMENT DATE : 2 February 2009

JUDGMENT OF : Gzell J

DECISION : Legal professional privilege in the documents abrogated.

CATCHWORDS : EVIDENCE - Client Legal Privilege - Documents produced in answer to a subpoena - Objection that privileged documents for purpose of Uniform Civil Procedure Rules 2005, r 1.9(3) - Legal professional privilege abrogated under James Hardie (Investigations and Proceedings) Act 2004 (Cth), s 4(1) in relation to James Hardie material which includes books and information of which ASIC requests or requires production or provision - Civil Procedure Act 2005, s 68 provides that a court may by subpoena order a person to produce any document to the court - Whether the documents were not James Hardie material because produced by court order and not at request or requirement of ASIC

James Hardie (Investigations and Proceedings) Act 2004 (Cth) Evidence Act 1995 Australian Securities and Investments Commission Act 2001 (Cth) LEGISLATION CITED : Civil Procedure Act 2005 Freedom of Information Act 1982 (Cth) Archives Act 1983 Proceeds of Crime Act 2002 (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)