Metcalfe P.W. v NZI Securities (Australia) Ltd & Ors [1995] FCA 224

Metcalfe P.W. v NZI Securities (Australia) Ltd & Ors [1995] FCA 224

Although the letter was privileged when written, the evidence supported inferences that it had been annexed to an affidavit filed in other proceedings, distributed to parties in the ordinary course, obtained lawfully by Mr Hawke, and not retrieved or objected to by Mr Poignand. In those circumstances it would not be fair to uphold the claim of privilege to defeat the tender, and any timing unfairness could be addressed by further questioning of Mr Moss in reply.

Jurisdiction
Australia
Judgment Date
06 April 1995
Procedural Posture
Federal Court Proceeding / Ruling on Tender of a Privileged Letter Into Evidence
Outcome
The tender was allowed and the letter was admitted into evidence.
Legal Topics
['admissibility of Documentary Evidence' 'legal Advice Privilege' 'waiver of Privilege' 'hearsay' 'use of Documents From Other Proceedings']
['evidence' 'legal Professional Privilege'] ['admissibility of Documentary Evidence' 'legal Advice Privilege' 'waiver of Privilege' 'hearsay' 'use of Documents From Other Proceedings']

Case Brief

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Procedural Posture

Federal Court Proceeding / Ruling on Tender of a Privileged Letter Into Evidence

Legal Issues

  1. 1 ['Whether a letter from solicitors communicating legal advice, privileged when written, should be admitted into evidence.' 'Whether an affidavit filed in other Supreme Court proceedings could be relied on to prove the source of the letter.' 'Whether the prior annexure and distribution of the letter in other proceedings made it unfair to uphold a claim of privilege in the present proceedings.']

Ratio Decidendi

Although the letter was privileged when written, the evidence supported inferences that it had been annexed to an affidavit filed in other proceedings, distributed to parties in the ordinary course, obtained lawfully by Mr Hawke, and not retrieved or objected to by Mr Poignand. In those circumstances it would not be fair to uphold the claim of privilege to defeat the tender, and any timing unfairness could be addressed by further questioning of Mr Moss in reply.

Court Disposition

The tender was allowed and the letter was admitted into evidence.

Orders

  • ['The letter of 25 March 1992, previously MFI 11, is admitted into evidence as exhibit 11.']