Gurtler v Finance Now Pty Limited (ACN 102 197 973) [2007] FCA 477

Gurtler v Finance Now Pty Limited (ACN 102 197 973) [2007] FCA 477

The Court held that privilege attached to the documents in question except for one, as the applicant had not put in issue the content of any privileged communication nor acted inconsistently with that privilege; there was no prima facie case that the communications were for the funder’s own or an improper purpose, and the factual disclosures did not result in waiver.

Jurisdiction
Australia
Judgment Date
03 April 2007
Procedural Posture
Interlocutory Application / Ruling on Claim of Legal Professional Privilege in Response to Production Orders
Outcome
Claim for legal professional privilege upheld (with exception of one document)
Legal Topics
['legal Professional Privilege' 'litigation Funding' 'common Interest Privilege' 'implied Waiver of Privilege' 'interlocutory Production of Documents' 'abuse of Process' 'fraud/improper Purpose Exception']
['practice and Procedure' 'corporations Law'] ['legal Professional Privilege' 'litigation Funding' 'common Interest Privilege' 'implied Waiver of Privilege' 'interlocutory Production of Documents' 'abuse of Process' 'fraud/improper Purpose Exception']

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Procedural Posture

Interlocutory Application / Ruling on Claim of Legal Professional Privilege in Response to Production Orders

Legal Issues

  1. 1 ['Whether legal professional privilege attaches to communications involving litigation funders and legal advisers' 'Whether applicant has waived privilege (issue waiver, disclosure waiver)' 'Whether privilege lost because litigation funder is pursuing own purposes' 'Whether fraud/improper purpose exception applies to claimed privilege']

Ratio Decidendi

The Court held that privilege attached to the documents in question except for one, as the applicant had not put in issue the content of any privileged communication nor acted inconsistently with that privilege; there was no prima facie case that the communications were for the funder’s own or an improper purpose, and the factual disclosures did not result in waiver.

Court Disposition

Claim for legal professional privilege upheld (with exception of one document)

Orders

  • ['The claim of legal professional privilege in respect of the listed documents is sustained except in relation to document 17 of list 2.1.']