FEDERAL COURT OF AUSTRALIA
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 985
TEMWELL PTY LTD (ACN 082 656 157) -v- DKGR HOLDINGS PTY LTD (formerly known as DYNAMIC DATA SYSTEMS PTY LTD) (In Liquidation) (ACN 062 778 616), mCOM SOLUTIONS INC, DRAGON VENTURES. COM INC, mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950), DAVID HAINS, ROBERT VAN ZANTEN, DRAGONVENTURES.COM LTD, RICHARD HAINS and IAN MORRIS KIEFEL
AND
mCOM SOLUTIONS INC. and mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950) v TEMWELL PTY LTD (ACN 082 656 157), SLADEMERE PTY LTD (ACN 082 656 139), SHEPRIDGE PTY LTD (ACN 082 696 077), GEOFFREY MICHAEL TAUBER, MORRY FRAID, ROGER ENRIQUEZ
V 663 of 2000
RYAN J
24 SEPTEMBER 2003
MELBOURNE
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VICTORIA DISTRICT REGISTRY |
V 663 of 2000 |
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BETWEEN: |
TEMWELL PTY LTD (ACN 082 656 157) Applicant |
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AND: |
DKGR HOLDINGS PTY LTD (formerly known as DYNAMIC DATA SYSTEMS PTY LTD) (In Liquidation) (ACN 062 778 616) First Respondent |
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mCOM SOLUTIONS INC. Second Respondent |
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DRAGON VENTURES. COM INC Third Respondent |
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mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950) Fourth Respondent |
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DAVID HAINS Fifth Respondent |
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ROBERT VAN ZANTEN Sixth Respondent |
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DRAGONVENTURES.COM LTD Seventh Respondent |
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RICHARD HAINS Eighth Respondent |
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IAN MORRIS KIEFEL Ninth Respondent |
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AND BETWEEN: |
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mCOM SOLUTIONS INC. and mCOM SOLUTIONS AUSTRALIA PTY LTD (In Liquidation) (ACN 091 375 950) Cross-Claimants |
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AND: |
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TEMWELL PTY LTD (ACN 082 656 157) SLADEMERE PTY LTD (ACN 082 656 139) SHEPRIDGE PTY LTD (ACN 082 696 077) GEOFFREY MICHAEL TAUBER MORRY FRAID ROGER ENRIQUEZ Cross-Respondents |
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JUDGE: |
RYAN J |
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DATE: |
24 SEPTEMBER 2003 |
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PLACE: |
MELBOURNE |
RULING No 7 ON CLAIM OF LEGAL PROFESSIONAL PRIVILEGE IN RELATION TO COMMUNICATIONS TO AND FROM APPLICANT’S EXPERT WITNESSES
1 On 9 September 2003, I published a ruling in this matter on a claim advanced on behalf of the applicant (“Temwell”), that certain communications with expert witnesses were protected by legal professional privilege; see [2003] FCA 948. That ruling was focused on file notes made by Mr Pringle, one of Temwell’s solicitors, of communications with two accounting or valuation experts, Ms June Wilson and Mr Peter Rayner.
2 A call has been made on behalf of the mCom respondents for production of further documents of the same general character recording communications with the same expert witnesses and two other witnesses, Mr Zeev Goldstein and Prof Goldschlager. Mr Goldstein’s evidence included expert testimony going to the description or definition of “Application Software” developed in connection with the MTD 3000. Those communications were mainly between one or other of the four experts and Mr Pringle, Mr Godfred-Spenning, Mr Horsfall, who have all acted at relevant times as solicitors for Temwell and Mr Golvan SC, Senior Counsel for Temwell. The documents have conveniently been collated by Temwell’s solicitors in five schedules, one devoted to each of the four expert witnesses identified above and a fifth “Schedule of Miscellaneous Documents Relevant to the Expert Witnesses.” I have adapted those schedules for the purpose of indicating, in a manner corresponding with the schedule to my earlier ruling, [2003] FCA 948, whether the claim of privilege has been sustained or rejected. Except where the reasons for adopting one or other of those classifications have been expanded below, it may be taken that I have applied the principles outlined in the earlier ruling.
4 At first sight it may appear difficult to reconcile the approach taken in Southcorp, which I have followed in the present case, with the result reached by the Court of Appeal of the Supreme Court of Queensland in Interchase Corporation Ltd (In Liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 QdR 141 where a claim of legal professional privilege was upheld in respect of documents in Category A described as follows;
‘Letters, facsimiles and enclosures passing between Feez Ruthning as solicitors for the plaintiff and Richard Ellis regarding the Retrospective Valuation, numbered 1 to 12 inclusive, contained in a folder marked with the letter "A" and entitled "Richard Ellis - Writ of Non-Party Discovery".’ [Richard Ellis was a firm of real estate valuers.]
5 However, Thomas J in that case observed at 162;
‘I would hold that in general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. Privilege may however be claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation. Beyond this there is no sufficient reason why any material relevant to the formation of the expert's opinion should be subject to a claim of legal professional privilege. It is as well to add that an expert or solicitor may not artificially manufacture privilege by, for example, the expert sending his or her file to the solicitor. Documents of this kind simply are not confidential.’
6 It is not clear from the description of the Category A documents or from the reasoning of either Pincus J or Thomas J (with both of whom de Jersey J agreed) what was regarded as permitting a conclusion that a communication between an expert witness and a party’s legal adviser has been made “for the purpose of confidential use in the litigation”. It may be that communications of the kind to which I have adverted in [3] above, such as explanations made to enable the legal advisers to better understand the expert’s opinion or suggestions of lines of cross-examination of opposing expert witnesses were regarded as confidential in that sense. At all events, I consider that, in accordance with the principles enunciated by the High Court in Attorney-General (NT) v Maurice (1986) 161 CLR 475, it would be unfair for the claim of privilege to be sustained in respect of documents which record instructions, suggestions or information given or made to an expert witness or successive draft reports from which the development of his or her expert opinion can otherwise be inferred. That is particularly so in light of the Guidelines for Expert Witnesses in this Court published as a Practice Direction on 15 September 1998 which were in force when the relevant communications were recorded. Those Guidelines included this direction under the heading “The Form of the Expert Evidence”:
‘There should be attached to the report, or summarised in it, the following:
(i) all instructions (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report;
(ii) the facts, matters and assumptions upon which the report proceeds; and
(iii) the documents and other materials which the expert has been instructed to consider.’
7 In a passage from Southcorp at [5] which I have quoted at [8] of my ruling of 9 September 2003, Lindgren J discussed the treatment to be accorded to “marking up” or “tracking” which he described as having been made by a solicitor to highlight changes from one draft to another of the expert’s report. That “marking up” or “tracking”, his Honour regarded as a confidential communication from solicitor to counsel which attracts legal professional privilege. That may be unexceptionable as a matter of principle. However, since the same exercise could be carried out with no more than the expenditure of a little time by a reader of the two drafts, I have not undertaken the sterile task of trying to identify who “marked up” or “tracked” particular copies of draft reports which have apparently been so treated. In other words, where I have considered that, prima facie, a claim to privilege should be rejected in respect of a draft report, I have not departed from that conclusion simply because the relevant copy has been “marked up” or “tracked.”
8 It was drawn to my attention in the course of oral submissions on the morning of 22 September 2003, that certain file notes made by Mr Pringle, a solicitor for Temwell, were divisible into discrete parts, only one or more of which recorded communications to or from expert witnesses so as to lose the legal professional privilege which has been claimed for the whole document. I have therefore ruled that the claim as to the file notes of 30 March 2001 at 9.30 am, 17 August 2001 and 20 May 2003 should be rejected only in respect of those parts recording communications to or from Prof Goldschlager. A similar approach has been taken to Mr Pringle’s file note of 21 February 2003 and his conference note of 19 May 2003 in relation to Mr Rayner.
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I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 24 September 2003
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Counsel for the Applicant and Cross Respondents: |
Mr C D Golvan SC with Dr S Ricketson |
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Solicitors for the Applicant and Cross Respondents: |
Meerkin & Apel |
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Counsel for the mCom Respondents and Cross-Claimants: |
Mr J L Sher QC with Mr J Delany |
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Solicitors for the mCom Respondents and Cross-Claimants: |
Minter Ellison |
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Counsel for Mr Elbaum and D&E Consulting Pty Ltd: |
Mr M Goldblatt |
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Solicitors for Mr Elbaum and D&E Consulting Pty Ltd |
Walker Herceg |
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Dates of Hearing: |
12 and 22 September 2003 |
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Date of Ruling: |
24 September 2003 |
SCHEDULE OF DOCUMENTS RELEVANT TO THE WITNESS PETER RAYNER
1. Privileged documents which the Applicant submits ought not be produced to the Respondents
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Date |
Description |
Ruling on Claim of Privilege |
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Correspondence |
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16/04/2002 |
E-mail from Peter Rayner to Andrew Godfred-Spenning including chain of e-mails from commencing 16/04/2002 |
Sustained |
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17/04/2002 |
E-mail from Peter Rayner to Andrew Godfred-Spenning including CV |
Sustained |
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23/04/2002 |
E-mail from Peter Rayner to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Peter Rayner of 23/04/2002 |
Sustained |
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27/05/2002 |
E-mail from Peter Rayner to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Peter Rayner of 27/05/2002 |
Sustained |
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5/06/2002 |
E-mail from Peter Rayner to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Peter Rayner of 5/06/2002 |
Sustained |
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28/06/2002 |
Letter from Peter Rayner to David Pringle |
Rejected |
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2/07/2002 |
Letter from David Pringle to Peter Rayner |
Rejected |
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3/07/2002 |
E-mail from Peter Rayner to David Pringle including Memo of 15/05/2002 (19:27) |
Rejected |
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3/07/2002 |
E-mail from Peter Rayner to David Pringle (19:36) |
Rejected |
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5/07/2002 |
Letter from David Pringle to Peter Rayner including final Deloittes report (enclosure not included) |
Rejected |
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16/07/2002 |
E-mail from Peter Rayner to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Peter Rayner of 16/07/2002 |
Sustained |
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17/07/2002 |
E-mail from David Pringle to Peter Rayner including chain of e-mails from-mails commencing 16/07/2002 |
Sustained |
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22/07/2002 |
Account Letter from Peter Rayner to David Pringle |
Rejected |
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24/07/2002 |
E-mail from Cristina Zelante to David Pringle including letter dated 22/07/2002 (noted as 17/07/2002) (11:31) |
Sustained |
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24/07/2002 |
E-mail from Peter Rayner to David Pringle including draft Report dated July 2002 (17:28) |
Sustained |
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30/07/2002 |
E-mail from Peter Rayner to David Pringle (attachment not available) (13:05) |
Sustained |
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30/07/2002 |
E-mail from David Pringle to Peter Rayner(attachment not available) (16:00) |
Rejected |
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31/07/2002 |
E-mail from Peter Rayner to David Pringle (attachment not available) |
Sustained |
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6/08/2002 |
Account Letter from Peter Rayner to David Pringle |
Rejected |
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19/08/2002 |
E-mail from Denise Claessen to Cristina Zelante |
Sustained |
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23/08/2002 |
Letter from Peter Rayner to David Pringle |
Sustained |
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24/01/2002 |
Letter from David Pringle to Peter Rayner |
Sustained |
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28/01/2003 |
Letter from Peter Rayner to David Pringle |
Sustained |
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11/02/2003 |
E-mail from David Pringle to Peter Rayner including chain of e-mails from-mails commencing 10/02/2003 |
Sustained |
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28/03/2002 |
E-mail from David Pringle to Peter Rayner |
Sustained |
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31/03/2003 |
E-mail from Peter Rayner to David Pringle in response to e-mail from David Pringle to RP dated 28/03/2003 |
Sustained |
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8/04/2003 |
E-mail from Peter Rayner to David Pringle including chain of e-mails from-mails commencing 8/04/2003 |
Sustained |
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15/04/2003 |
E-mail from Peter Rayner to David Pringle including draft Supplementary Report |
Rejected |
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16/04/2003 |
E-mail from Peter Rayner to David Pringle |
Sustained |
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17/04/2003 |
E-mail from Andrew Godfred-Spenning to Peter Rayner |
Sustained |
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7/05/2003 |
E-mail from Peter Rayner to David Pringle (16:07) |
Rejected |
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7/05/2003 |
E-mail from Peter Rayner to David Pringle including draft Independent Expert Report dated 7 May 2003 (16:59) |
Rejected |
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9/05/2003 |
E-mail from Andrew Godfred-Spenning to Peter Rayner (13:22) |
Rejected |
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9/05/2003 |
E-mail from Cristina Cottrell to David Pringle including draft Reports (15:04) |
Rejected |
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8/05/2003 |
E-mail from Cristina Cottrell to David Pringle including draft Reports |
Rejected |
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9/05/2003 |
E-mail from Cristina Cottrell to David Pringle (15:05) |
Sustained |
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9/05/2003 |
E-mail from Cristina Cottrell to David Pringle including draft Supplementary Report (15:09) |
Rejected |
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9/05/2003 |
E-mail from Andrew Godfred-Spenning to Peter Rayner including draft Rayner affidavit (15:35) |
Rejected |
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9/05/2003 |
E-mail from Andrew Godfred-Spenning to Peter Rayner including draft affidavit exhibit sheets (15:42) |
Sustained |
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21/05/2003 |
E-mail from David Pringle to Phillip Rundle including draft Independent Expert Report dated 9 May 2003 |
Rejected |
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28/05/2003 |
E-mail from David Pringle to Phillip Rundle including draft Supplementary Report |
Rejected |
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13/06/2003 |
E-mail from Cristina Cottrell to David Pringle including CV (17:23) |
Rejected |
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13/06/2003 |
E-mail from David Pringle to Cristina Cottrell in response to e-mail from Cristina Cottrell to David Pringle (17:42) |
Rejected |
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15/06/2003 |
E-mail from Cristina Cottrell to David Pringle including draft Reports (18:54) |
Rejected |
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15/06/2003 |
E-mail from Colin Golvan to Cristina Cottrell and David Pringle including draft Reports (21:12) |
Rejected |
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15/06/2003 |
E-mail from Colin Golvan to Cristina Cottrell and David Pringle including draft Particulars of Loss and Damage (21:57) |
Rejected |
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16/06/2003 |
E-mail from Peter Rayner to Colin Golvan (9:47) |
Sustained |
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16/06/2003 |
E-mail from Phillip Rundle to Chris Horsfall (11:03) |
Rejected |
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16/06/2003 |
E-mail from Cristina Cottrell to David Pringle including draft Reports (12:31) |
Rejected |
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16/06/2003 |
E-mail from Cristina Cottrell to David Pringle including draft Independent Expert Report dated 16 June 2003 (18:33) |
Rejected |
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16/06/2003 |
E-mail from Cristina Cottrell to David Pringle including final Independent Expert Report dated 16 July 2003 (19:04) |
Rejected |
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19/06/2003 |
E-mail from David Pringle to Peter Rayner including draft Independent Expert Report dated 16 June 2003 (15:31) |
Rejected |
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19/06/2003 |
E-mail from David Pringle to Peter Rayner including Supplementary Report dated 16 June 2003 (15:50) |
Rejected |
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19/06/2003 |
E-mail from David Pringle to Peter Rayner including draft Particulars of Loss and Damage (15:52) |
Rejected |
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19/06/2003 |
E-mail from Cristina Cottrell to David Pringle including amended Rayner Reports (18:15) |
Rejected |
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16/07/2003 |
Letter from David Pringle to Peter Rayner re trial dates |
Sustained |
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17/07/2003 |
E-mail from Peter Rayner to Chris Horsfall |
Sustained |
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3/09/2003 |
E-mail from David Pringle to Peter Rayner in response to e-mail from Peter Rayner to David Pringle of 3/09/2003 |
Sustained |
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Filenotes And Conference Notes |
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16/04/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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17/04/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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23/04/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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26/04/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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1/05/2002 |
Filenote of David Pringle |
Sustained |
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8/05/2002 |
Filenote of David Pringle |
Sustained |
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27/05/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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4/06/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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5/06/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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12/06/2002 |
Filenote of David Pringle |
Rejected |
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17/06/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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19/06/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
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20/06/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
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20/06/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
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20/06/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
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24/06/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
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26/06/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
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3/07/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
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4/07/2002 |
Conference Note of Andrew Godfred-Spenning |
Rejected |
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16/07/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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19/07/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
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22/07/2002 |
Filenote of David Pringle |
Sustained |
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23/07/2002 |
Conference Note of Andrew Godfred-Spenning |
Rejected |
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30/07/2002 |
Conference Note of Andrew Godfred-Spenning |
Rejected |
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20/02/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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21/02/2003 |
Filenote of David Pringle |
Rejected as to part |
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19/03/2002 |
Conference Note of Andrew Godfred-Spenning |
Rejected |
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26/03/2003 |
Filenote of David Pringle |
Sustained |
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26/03/2003 |
Filenote of David Pringle |
Sustained |
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15/04/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
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29/04/2003 |
Conference Note of Andrew Godfred-Spenning |
Sustained |
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29/04/2003 |
Filenote of David Pringle |
Sustained |
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30/04/2003 |
Filenote of David Pringle |
Sustained |
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1/05/2003 |
Filenote of David Pringle |
Sustained |
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6/05/2003 |
Filenote of Andrew Godfred-Spenning at 2.05 pm |
Sustained |
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7/05/2003 |
Conference Note of Andrew Godfred-Spenning |
Rejected |
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8/05/2003 |
Filenote of Andrew Godfred-Spenning of telephone to Peter Rayner |
Sustained |
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8/05/2003 |
Filenote of Andrew Godfred-Spenning of telephone to Phillip Rundle |
Sustained |
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19/05/2003 |
Conference Note of David Pringle |
Rejected as to part |
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5/06/2003 |
Filenote of Chris Horsfall |
Sustained |
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10/06/2003 |
Filenote of Chris Horsfall |
Sustained |
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2. Privileged documents which arguably fall within category of documents which the court may direct to be disclosed (per Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948)
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Date |
Description |
Ruling on Claim of Privilege |
Correspondence |
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8/05/2002 |
Letter from David Pringle to Peter Rayner |
Rejected |
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31/05/2002 |
Letter from Peter Rayner to David Pringle |
Rejected |
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4/06/2002 |
E-mail from Peter Rayner to Andrew Godfred-Spenning including Letter of Engagement |
Rejected |
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7/06/2002 |
Letter from David Pringle to Peter Rayner |
Rejected |
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11/06/2002 |
Letter from David Pringle to Peter Rayner |
Rejected |
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12/06/2002 |
Letter from David Pringle to Peter Rayner |
Rejected |
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17/06/2002 |
E-mail from Andrew Godfred-Spenning to Peter Rayner |
Rejected |
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20/06/2002 |
Letter from David Pringle to Peter Rayner |
Rejected |
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5/07/2002 |
LDP to Peter Rayner (enclosures not available) |
Rejected |
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17/07/2002 |
E-mail from Peter Rayner to David Pringle including draft Independent Expert Report dated July 2002 |
Rejected |
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19/07/2002 |
E-mail from Peter Rayner to David Pringle including draft Independent Expert Report dated July 2002 |
Rejected |
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24/07/2002 |
E-mail from Andrew Godfred-Spenning to Peter Rayner |
Rejected |
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29/07/2002 |
Fax from Andrew Godfred-Spenning to Peter Rayner including financial documents |
Rejected |
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31/07/2002 |
E-mail from Peter Rayner to David Pringle including Final Independent Expert Report |
Rejected |
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31/07/2002 |
Final Independent Expert Report dated 31 July 2002 |
Rejected |
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8/04/2003 |
Letter from David Pringle to Peter Rayner including COA schedule |
Rejected |
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14/04/2003 |
Letter from David Pringle to Peter Rayner |
Rejected |
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1/05/2003 |
Letter from David Pringle to Peter Rayner including various financial documents |
Rejected |
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2/05/2003 |
Letter from David Pringle to Peter Rayner |
Rejected |
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7/05/2003 |
E-mail from Phillip Rundle to David Pringle including draft Independent Expert Report dated 7 May 2003 |
Rejected |
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8/05/2003 |
Letter from David Pringle to Peter Rayner |
Rejected |
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29/05/2003 |
Letter from David Pringle to Peter Rayner including ANZ Acknowledgement |
Rejected |
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29/05/2003 |
Letter from David Pringle to Peter Rayner including extracts of Kiefel affidavit |
Rejected |
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3/06/2003 |
Letter from David Pringle to Peter Rayner including schedule |
Rejected |
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10/06/2003 |
Letter from David Pringle to Peter Rayner including Goldstein affidavit (attachment not included) |
Rejected |
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13/06/2003 |
E-mail from David Pringle to Peter Rayner including preliminary report of Les Goldschlager (14:11) |
Rejected |
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13/06/2003 |
E-mail from David Pringle to Peter Rayner including draft Report of June Wilson dated 13/06/2003 (referred to in List of Documents dated 8/9/2003) (17:39) |
Rejected |
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16/06/2003 |
E-mail from Peter Rayner to David Pringle including filenote (11:03) |
Rejected |
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16/06/2003 |
E-mail from David Pringle to Peter Rayner including draft Report of June Wilson dated 16/06/2003 (referred to in List of Documents dated 8/9/2003) (15:13) |
Rejected |
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17/06/2003 |
Letter from David Pringle to Peter Rayner including Rayner affidavit (enclosure not included) |
Rejected |
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19/06/2003 |
E-mail from David Pringle to Peter Rayner and June Wilson including amended June Wilson report dated 19/06/2003 (15:28) |
Rejected |
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19/06/2003 |
E-mail from David Pringle to Peter Rayner including final June Wilson report dated 19 June 2003 (17:40) |
Rejected |
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20/06/2003 |
Letter from David Pringle to Peter Rayner including sworn Rayner and Wilson affidavits (enclosures not included) |
Rejected |
Filenotes And Conference Notes |
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3/07/2002 |
Filenote of David Pringle |
Rejected |
|
9/04/2003 |
Filenote of Andrew Godfred-Spenning |
Rejected |
|
7/05/2003 |
Conference Note of Andrew Godfred-Spenning |
Rejected |
|
8/05/2003 |
Filenote of Andrew Godfred-Spenning |
Rejected |
SCHEDULE OF DOCUMENTS RELEVANT TO THE WITNESS JUNE WILSON
1. Privileged documents which the Applicant submits ought not be produced to the Respondents
|
Date |
Description |
Ruling on Claim of Privilege |
Correspondence |
||
|
15/11/2001 |
Letter from John Spender to June Wilson |
Rejected |
|
26/11/2001 |
Letter from June Wilson to Andrew Godfred |
Sustained |
|
6/12/2001 |
With compliments slip from June Wilson |
Sustained |
|
6/12/2001 |
Letter from June Wilson to David Pringle |
Rejected |
|
10/12/2001 |
E-mail from Shirley Block to Shirley Block |
Sustained |
|
10/12/2001 |
E-mail from Katie Jones to David Pringle including Engagement Letter of 6/12/2001 |
Rejected |
|
17/12/2001 |
Letter from David Pringle to June Wilson including signed Engagement Letter |
Rejected |
|
21/12/2001 |
E-mail from June Wilson to David Pringle including Draft Report of 21/12/2001 |
Rejected |
|
8/01/2002 |
E-mail from Andrew Godfred-Spenning to June Wilson in response to E-mail from June Wilson to David Pringle of 8/01/2002 |
Sustained |
|
25/01/2002 |
Letter from David Pringle to June Wilson |
Rejected |
|
13/02/2002 |
With Compliments slip from June Wilson to Andrew Godfred-Spenning |
Sustained |
|
13/02/2002 |
Letter from June Wilson to David Pringle including Final Report dated February 2002 |
Rejected |
|
21/03/2002 |
E-mail from June Wilson to Andrew Godfred-Spenning including Letter from June Wilson to David Pringle of 21/03/2002 |
Rejected |
|
21/03/2002 |
Letter from June Wilson to David Pringle |
Rejected |
|
25/07/2002 |
E-mail from June Wilson to Andrew Godfred-Spenning in response to E-mail from Andrew Godfred-Spenning to June Wilson of 25/07/2002 including June Wilson affidavit (attachment not available) |
Sustained |
|
24/01/2003 |
Letter from David Pringle to June Wilson |
Sustained |
|
7/02/2003 |
Letter from June Wilson to David Pringle |
Sustained |
|
17/04/2003 |
E-mail from June Wilson to Andrew Godfred-Spenning in response to E-mail from Andrew Godfred-Spenning to June Wilson 17/04/2003 |
Sustained |
|
8/05/2003 |
E-mail from Andrew Godfred-Spenning to June Wilson in response to E-mail from June Wilson to Andrew Godfred-Spenning of 8/05/2003 including CV |
Sustained |
|
20/05/2003 |
E-mail from June Wilson to David Pringle including additional CV material (11:11) |
Rejected |
|
20/05/2003 |
E-mail from June Wilson to Chris Horsfall including copy of Final Report dated 21 December 2001 (14:47) |
Sustained |
|
4/06/2003 |
E-mail from June Wilson to David Pringle |
Rejected |
|
4/06/2003 |
E-mail from David Pringle to June Wilson |
Rejected |
|
13/06/2003 |
E-mail from June Wilson to David Pringle including draft Report dated 13/06/2003 |
Rejected |
|
16/06/2003 |
E-mail from David Pringle to June Wilson including draft Report dated 16/06/2003 (10:24) |
Rejected |
|
16/06/2003 |
E-mail from June Wilson to David Pringle including draft Report dated 16/06/2003 (15:06) |
Rejected |
|
16/06/2003 |
E-mail from June Wilson to David Pringle including draft Report (noted as final report) (18:34) |
Rejected |
|
17/06/2003 |
E-mail from June Wilson to David Pringle including additional CV material (11:26) |
Rejected |
|
17/06/2003 |
E-mail from June Wilson to CV in response to E-mail from David Pringle to June Wilson of 17/06/2003 including additional CV material (12:25) |
Rejected |
|
17/06/2003 |
E-mail from June Wilson to David Pringle including revised CV (14:09) |
Rejected |
|
17/06/2003 |
E-mail from David Pringle to June Wilson (14:47) |
Sustained |
|
17/06/2003 |
E-mail from June Wilson to David Pringle (18:37) |
Rejected |
|
18/06/2003 |
E-mail from Colin Golvan to June Wilson including draft Report dated June 2003 (21:45) |
Rejected |
|
18/06/2003 |
E-mail from David Pringle to Colin Golvan copied to June Wilson (22:08) |
Sustained |
|
19/06/2003 |
E-mail from Colin Golvan to June Wilson including draft Report dated June 2003 (marked as final) (9:03) |
Rejected |
|
19/06/2003 |
E-mail from GC to David Pringle copied to June Wilson including draft Report dated June 2003 (marked as final) (14:56) |
Rejected |
|
19/06/2003 |
E-mail from June Wilson to David Pringle including final Report (17:37) |
Rejected |
|
3/07/2003 |
E-mail from June Wilson to David Pringle including chain of e-mails commencing 3/07/2003 (10:01) |
Sustained |
|
3/07/2003 |
E-mail from June Wilson to David Pringle in response to E-mail from David Pringle to June Wilson of 3/07/2003 (10:31) |
Sustained |
|
11/07/2003 |
E-mail from David Pringle to June Wilson including chain of e-mails commencing 3/07/2003 |
Sustained |
|
16/07/2003 |
Letter from David Pringle to June Wilson |
Sustained |
|
17/07/2003 |
E-mail from Chris Horsfall to June Wilson |
Sustained |
|
21/07/2003 |
E-mail from June Wilson to Chris Horsfall |
Sustained |
Filenotes And Conference Notes |
||
|
12/11/2001 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
15/11/2001 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
21/11/2001 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
13/12/2001 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
19/12/2001 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
25/01/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
25/01/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
29/01/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
13/02/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
|
8/05/2003 |
Filenote of Andrew Godfred-Spenning |
Rejected |
|
20/05/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
21/05/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
23/05/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|
24/06/2003 |
Conference Note of David Pringle |
Sustained |
2. Privileged documents which arguably fall within category of documents which the court may direct to be disclosed (per Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948)
|
Date |
Description |
Ruling on Claim of Privilege |
Correspondence |
||
|
23/11/2001 |
Fax of June Wilson to David Pringle including CVs of Colin Wight and June Wilson |
Rejected |
|
7/02/2002 |
Letter from David Pringle to June Wilson |
Rejected |
|
8/05/2003 |
E-mail from June Wilson to David Pringle including CV |
Rejected |
|
8/05/2003 |
E-mail from Andrew Godfred-Spenning to June Wilson |
Rejected |
|
26/05/2003 |
Letter from June Wilson to David Pringle including Letter of Engagement dated 26/05/2003 |
Rejected |
|
27/05/2003 |
Fax of David Pringle to June Wilson |
Rejected |
|
3/06/2003 |
Letter from David Pringle to June Wilson |
Rejected |
|
12/06/2003 |
E-mail from June Wilson to DP including draft Report dated 12/06/2003 (referred to in List of Documents dated 8/9/2003) |
Rejected |
|
13/06/2003 |
E-mail from David Pringle to June Wilson including e-mail from Les Goldschlager |
Rejected |
|
16/06/2003 |
E-mail from David Pringle to June Wilson including draft Rayner Reports (10:26) |
Rejected |
|
16/06/2003 |
E-mail from David Pringle to Colin Golvan and June Wilson including draft Rayner Reports (marked final) (13:06) |
Rejected |
|
17/06/2003 |
Letter from David Pringle to June Wilson including sworn June Wilson affidavit (enclosure not provided) |
Rejected |
|
19/06/2003 |
E-mail from David Pringle to June Wilson and Peter Rayner including draft Wilson Report (15:28) |
Rejected |
|
19/06/2003 |
E-mail from June Wilson to David Pringle including final Report (17:37) |
Rejected |
|
20/06/2003 |
Letter from David Pringle to June Wilson including sworn June Wilson affidavit (enclosure not provided) |
Sustained |
Filenotes And Conference Notes |
||
|
- |
None |
|
SCHEDULE OF DOCUMENTS RELEVANT TO THE WITNESS ZEEV GOLDSTEIN
1. Privileged documents which the Applicant submits ought not be produced to the Respondents
|
Date |
Description |
Ruling on Claim of Privilege |
|
31/03/2003 |
Filenote of David Pringle |
Sustained |
|
1/04/2003 |
Filenote of David Pringle |
Rejected |
|
7/04/2003 |
Filenote of David Pringle |
Sustained |
|
8/04/2003 |
Filenote of David Pringle |
Sustained |
|
15/04/2003 |
Filenote of David Pringle |
Sustained |
|
8/05/2003 |
Filenote of David Pringle |
Sustained |
|
3/06/2003 |
Filenote of David Pringle (9:30) |
Sustained |
|
3/06/2003 |
Filenote of David Pringle (11:50) |
Sustained |
|
24/04/2003 |
Conference Note of David Pringle |
Sustained |
|
5/05/2003 |
Filenote of David Pringle |
Sustained |
|
7/05/2003 |
Conference Note of Andrew Godfred-Spenning |
Sustained |
|
13/05/2003 |
E-mail from Zeev Goldstein to David Pringle including chain of e-mails commencing 11/05/2003 |
Sustained |
|
29/05/2003 |
E-mail from Zeev Goldstein to David Pringle |
Sustained |
|
3/06/2003 |
Conference Note of David Pringle (2:30) |
Sustained |
|
3/06/2003 |
Conference Note of David Pringle (3:00) |
Sustained |
|
4/06/2003 |
Conference Note of David Pringle |
Sustained |
|
5/06/2003 |
Conference Note of David Pringle (9:30) |
Sustained |
|
5/06/2003 |
Conference Note of David Pringle (3:00) |
Sustained |
|
6/06/2003 |
Filenote of David Pringle (11:28) |
Sustained |
|
6/06/2003 |
Filenote of David Pringle (10:54) |
Sustained |
|
6/06/2003 |
Conference Note of David Pringle |
Sustained |
|
6/06/2003 |
Filenote of David Pringle (6:05) |
Sustained |
|
14/06/2003 |
E-mail from Zeev Goldstein Effie Bonaccurso and David Pringle |
Sustained |
|
11/08/2003 |
Filenote of David Pringle |
Sustained |
|
13/08/2003 |
Filenote of Zeev Goldstein |
Sustained |
|
16/08/2003 |
E-mail from Zeev Goldstein David Pringle |
Sustained |
|
28/08/2003 |
E-mail from Chris Horsfall to Zeev Goldstein including MTD diagram |
Sustained |
|
31/08/2003 |
Conference Note of David Pringle |
Sustained |
|
1/09/2003 |
Filenote of David Pringle |
Sustained |
|
3/09/2003 |
Filenote of Chris Horsfall |
Sustained |
2. Privileged documents which arguably fall within category of documents which the court may direct to be disclosed (per Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948)
|
Date |
Description |
Ruling on Claim of Privilege |
|
8/08/2003 |
Fax from David Pringle to Zeev Goldstein including extracts of affidavits of David Hains, Yaron Ivry and Ken Hansen |
Rejected |
SCHEDULE OF DOCUMENTS RELEVANT TO THE WITNESS PROFESSOR LESLIE MICHAEL GOLDSCHLAGER
1. Privileged documents which the Applicant submits ought not be produced to the Respondents
|
Date |
Description |
Ruling on Claim of Privilege |
|||
Correspondence |
|||||
|
20/02/2001 |
Letter from David Pringle to Les Goldschlager |
Rejected |
|||
|
27/02/2001 |
E-mail from Les Goldschlager to David Pringle including biography |
Rejected |
|||
|
26/03/2001 |
E-mail from David Pringle to Les Goldschlager including Confidentiality Undertaking |
Rejected |
|||
|
9/04/2001 |
E-mail from David Pringle to Les Goldschlager in response to e-mail from Les Goldschlager to David Pringle of 9/04/2001 including draft Report |
Rejected |
|||
|
15/08/2001 |
E-mail from Les Goldschlager to David Pringle in response to e-mail from David Pringle to Les Goldschlager of 14/08/2001 |
Sustained |
|||
|
22/08/2001 |
E-mail from David Pringle to Les Goldschlager including draft affidavit |
Rejected |
|||
|
27/08/2001 |
E-mail from David Pringle to Les Goldschlager including draft affidavit |
Rejected |
|||
|
22/04/2002 |
E-mail from David Pringle to Les Goldschlager |
Sustained |
|||
|
22/07/2002 |
E-mail from Andrew Godfred-Spenning to Les Goldschlager including chain of e-mails from commencing 18/07/2002 |
Rejected |
|||
|
3/03/2003 |
E-mail from Les Goldschlager to Andrew Godfred-Spenning including draft Report dated 3/03/2003 |
Rejected |
|||
|
4/03/2003 |
E-mail from Les Goldschlager to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Les Goldschlager of 4/03/2003 including draft Report dated 3/03/2003 |
Rejected |
|||
|
5/03/2002 |
E-mail from Andrew Godfred-Spenning to Les Goldschlager including draft Report dated 3/03/2003 |
Rejected |
|||
|
17/04/2003 |
E-mail from Les Goldschlager to Andrew Godfred-Spenning in response to e-mail from Andrew Godfred-Spenning to Les Goldschlager of 17/04/2003 |
Sustained |
|||
|
12/06/2003 |
E-mail from David Pringle to Les Goldschlager |
Sustained |
|||
|
13/06/2003 |
E-mail from David Pringle to Les Goldschlager |
Sustained |
|||
|
16/06/2003 |
E-mail from Chris Horsfall to Les Goldschlager including draft Report dated 16/06/2003 |
Rejected |
|||
|
16/07/2003 |
Letter from David Pringle to Les Goldschlager |
Sustained |
|||
|
17/07/2003 |
E-mail from Chris Horsfall to Les Goldschlager |
Sustained |
|||
|
18/07/2003 |
E-mail from Les Goldschlager to Chris Horsfall including draft Report dated 18/07/2003 (11:43) |
Rejected |
|||
|
18/07/2003 |
E-mail from Les Goldschlager to Chris Horsfall (15:22) |
Rejected |
|||
Filenotes And Conference Notes |
|||||
|
19/02/2001 |
Filenote of David Pringle |
Sustained |
|||
|
23/03/2001 |
Filenote of David Pringle |
Sustained |
|||
|
26/03/2001 |
Conference Note of David Pringle |
Rejected |
|||
|
28/03/2001 |
Filenote of David Pringle |
Rejected |
|||
|
30/03/2001 |
Filenote of David Pringle (9:30) |
Rejected as to part |
|||
|
30/03/2001 |
Draft letter to Griffith Hack with notations |
Sustained |
|||
|
30/03/2001 |
Filenote of David Pringle (3:30) |
Sustained |
|||
|
2/04/2001 |
Filenote of David Pringle (11:45) |
Sustained |
|||
|
2/04/2001 |
Filenote of David Pringle (10:00) |
Rejected |
|||
|
9/04/2001 |
Filenote of David Pringle (8:49) |
Rejected |
|||
|
9/04/2001 |
Filenote of David Pringle (4:35) |
Sustained |
|||
|
10/04/2001 |
Filenote of David Pringle |
Sustained |
|||
|
16/04/2001 |
Filenote of David Pringle |
Rejected |
|||
|
23/05/2001 |
Filenote of David Pringle |
Sustained |
|||
|
29/05/2001 |
Filenote of David Pringle |
Rejected |
|||
|
1/06/2001 |
Conference Note of David Pringle |
Sustained |
|||
|
13/06/2001 |
Filenote of David Pringle |
Rejected |
|||
|
17/08/2001 |
Conference Note of David Pringle |
Pg 1 Rejected as to part. Pg 2 and following Sustained |
|||
|
21/08/2001 |
Filenote of David Pringle |
Rejected |
|||
|
16/10/2001 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
1/11/2001 |
Filenote of Andrew Godfred-Spenning |
Rejected |
|||
|
22/04/2002 |
Filenote of David Pringle |
Sustained |
|||
|
6/06/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
5/07/2002 |
Filenote of Andrew Godfred-Spenning (10:02) |
Sustained |
|||
|
5/07/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
8/07/2002 |
Conference Note of Andrew Godfred-Spenning |
Rejected |
|||
|
8/07/2002 |
Conference Note of David Pringle |
Sustained |
|||
|
8/07/2002 |
Filenote of Andrew Godfred-Spenning (4:45) |
Rejected |
|||
|
18/07/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
|||
|
19/07/2002 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
22/07/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
|||
|
25/07/2002 |
Filenote of David Pringle |
Sustained |
|||
|
6/08/02 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
7/8/02 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
11/02/2003 |
Filenote of David Pringle |
Sustained |
|||
|
17/02/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
20/02/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
24/02/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
28/02/2003 |
Filenote of David Pringle |
Sustained |
|||
|
28/02/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
11/04/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
14/04/2003 |
Filenote of Andrew Godfred-Spenning |
Rejected |
|||
|
20/05/2003 |
Conference Note of David Pringle |
Pg 1 Rejected as to part Pg 2 Sustained |
|||
|
22/05/2003 |
Filenote of Andrew Godfred-Spenning |
Sustained |
|||
|
29/05/2003 |
Filenote of Chris Horsfall |
Sustained |
|||
|
12/06/2003 |
Filenote of David Pringle |
Rejected |
|||
|
1/07/2003 |
Filenote of Chris Horsfall |
Sustained |
|||
|
15/07/2003 |
Filenote of David Pringle |
Sustained |
|||
|
18/07/2003 |
Filenote of Chris Horsfall |
Rejected |
|||
|
18/07/2003 |
Filenote of David Pringle (3:30) |
Rejected |
|||
|
18/07/2003 |
Filenote of David Pringle (5:05) |
Sustained |
|||
2. Privileged documents which arguably fall within category of documents which the court may direct to be disclosed (per Temwell Pty Ltd v DKGR Holdings Pty Ltd [2003] FCA 948)
|
Date |
Description |
Ruling on Claim of Privilege |
Correspondence |
|
|
|
9/04/2001 |
E-mail from Les Goldschlager to David Pringle including draft Report dated 9/04/2001 |
Rejected |
|
10/04/2001 |
E-mail from Les Goldschlager to David Pringle including Report dated 10/04/2001 |
Rejected |
|
10/04/2001 |
E-mail from Les Goldschlager to David Pringle including Report dated 10/04/2001 |
Rejected |
|
27/08/2001 |
Letter from David Pringle to Les Goldschlager including Federal Court guidelines |
Rejected |
|
9/10/2001 |
Letter from David Pringle to Les Goldschlager |
Rejected |
|
8/07/2002 |
Letter from David Pringle to Les Goldschlager including exhibit ‘LG3’ to Goldschlager affidavit (enclosure not included) |
Rejected |
|
19/07/2002 |
Letter from David Pringle to Les Goldschlager (enclosures not included) |
Rejected |
|
25/07/2002 |
Fax from Les Goldschlager to David Pringle |
Rejected |
|
31/07/2002 |
Letter from David Pringle to Les Goldschlager |
Rejected |
|
11/02/2003 |
E-mail from Les Goldschlager to David Pringle |
Rejected |
|
17/02/2003 |
Letter from Andrew Godfred-Spenning to Les Goldschlager including various technical documents and affidavits of Conn, G Farrar (enclosures not included) |
Rejected |
|
24/02/2003 |
Letter from Andrew Godfred-Spenning to Les Goldschlager including MTD300 disk and affidavits of Conn and G Farrar (enclosures not included) |
Rejected |
|
25/02/2003 |
Letter from Andrew Godfred-Spenning to Les Goldschlager including affidavit of P Farrar (enclosure not included) |
Rejected |
|
26/02/2003 |
E-mail from Les Goldschlager to Andrew Godfred-Spenning including draft Report dated 26/02/2003 |
Rejected |
|
26/02/2003 |
E-mail from Andrew Godfred-Spenning to Les Goldschlager including Federal Court guidelines |
Rejected |
|
3/03/2003 |
Letter from David Pringle to Les Goldschlager |
Rejected |
|
5/03/2003 |
Letter from Andrew Godfred-Spenning to Les Goldschlager including sworn Goldschlager affidavit (enclosure not included) |
Rejected |
|
14/04/2003 |
Letter from David Pringle to Les Goldschlager including MacGregor affidavit (enclosure not included) |
Rejected |
|
22/05/2003 |
Letter from David Pringle to Les Goldschlager |
Rejected |
|
28/05/2003 |
Letter from David Pringle to Les Goldschlager including disk of software from Dr Steve Roberts (enclosure not included) |
Rejected |
|
3/06/2003 |
Letter from David Pringle to Les Goldschlager |
Rejected |
|
12/06/2003 |
E-mail from Les Goldschlager to David Pringle including salary survey |
Rejected |
|
16/06/2003 |
E-mail from Les Goldschlager to David Pringle including CV in response to e-mail from David Pringle to Les Goldschlager of 13/06/2003 |
Sustained |
|
17/06/2003 |
E-mail from Les Goldschlager to David Pringle including draft Report dated 17/06/2003 |
Rejected |
|
17/06/2003 |
Letter from David Pringle to Les Goldschlager including sworn Goldschlager affidavit |
Rejected |
|
27/06/2003 |
Letter from David Pringle to Les Goldschlager |
Rejected |
|
1/07/2003 |
E-mail from Les Goldschlager to David Pringle |
Rejected |
|
15/07/2003 |
Letter from David Pringle to Les Goldschlager including various correspondence |
Rejected |
|
18/07/2003 |
E-mail from Les Goldschlager to David Pringle including draft Report dated 18/07/2003 |
Rejected |
|
22/07/2003 |
Letter from David Pringle to Les Goldschlager including sworn Goldschlager affidavit |
Rejected |
Filenotes And Conference Notes |
||
|
24/07/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
|
31/07/2002 |
Filenote of Andrew Godfred-Spenning |
Rejected |
|
24/02/2003 |
Filenote of David Pringle |
Rejected |
SCHEDULE OF MISCELLANEOUS DOCUMENTS RELEVANT TO THE EXPERT WITNESSES
1. Privileged documents which the Applicant submits ought not be produced to the Respondents
|
Date |
Description |
Ruling on Claim for Privilege |
Documents Which Relate To More Than One Of The Expert Witnesses (File/Conference Notes) |
||
|
10/06/2003 |
Filenote of Chris Horsfall |
Sustained |
|
19/06/2001 |
Filenote of David Pringle |
Sustained |
|
19/06/2003 |
Filenote of David Pringle |
Rejected |
Redacted Conference Notes |
||
|
23/11/2001 |
Conference Note of Andrew Godfred-Spenning |
Rejected |
|
8/05/2002 |
Conference Note of Andrew Godfred-Spenning |
Rejected |
|
21/02/2003 |
Conference Note of Andrew Godfred-Spenning |
Rejected |
|
27/05/2003 |
Conference Note of Chris Horsfall |
Rejected |
