Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3

The Jeffery affidavit was intended to fulfil the role of an affidavit of discovery and to be read and relied upon by the appellants for the purposes of the First Proceeding, including mediation. Once it was filed and served, any confidentiality necessary to support legal professional privilege was destroyed, and any privilege in communications or advice apparent from the affidavit was waived. The affidavit was not privileged, and special circumstances justified release from the implied undertaking because its use in the Supreme Court proceedings was appropriate and in the interests of justice.

Jurisdiction
Australia
Judgment Date
08 February 2005
Procedural Posture
Appeal Concerning Leave to Use an Affidavit From Earlier Federal Court Proceedings in Supreme Court Proceedings / Full Court Appeal From a Single Judge; Reasons for Orders Made on 24 January 2005
Outcome
Leave to appeal granted; appeal allowed; leave granted to use the Jeffery affidavit in the Supreme Court of Victoria proceedings.
Legal Topics
['use of Affidavit in Later Proceedings' 'implied Undertaking' 'waiver of Privilege' 'special Circumstances for Release From Implied Undertaking']
['practice and Procedure' 'evidence' 'legal Professional Privilege'] ['use of Affidavit in Later Proceedings' 'implied Undertaking' 'waiver of Privilege' 'special Circumstances for Release From Implied Undertaking']

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Procedural Posture

Appeal Concerning Leave to Use an Affidavit From Earlier Federal Court Proceedings in Supreme Court Proceedings / Full Court Appeal From a Single Judge; Reasons for Orders Made on 24 January 2005

Legal Issues

  1. 1 ['Whether the Jeffery affidavit was protected by legal professional privilege after it was filed and served in the First Proceeding.' 'Whether any privilege in the Jeffery affidavit was waived by filing and service.' 'Whether the appellants should be released from the implied undertaking so as to use the Jeffery affidavit in Supreme Court of Victoria proceedings.']

Ratio Decidendi

The Jeffery affidavit was intended to fulfil the role of an affidavit of discovery and to be read and relied upon by the appellants for the purposes of the First Proceeding, including mediation. Once it was filed and served, any confidentiality necessary to support legal professional privilege was destroyed, and any privilege in communications or advice apparent from the affidavit was waived. The affidavit was not privileged, and special circumstances justified release from the implied undertaking because its use in the Supreme Court proceedings was appropriate and in the interests of justice.

Court Disposition

Leave to appeal granted; appeal allowed; leave granted to use the Jeffery affidavit in the Supreme Court of Victoria proceedings.

Orders

  • ['Leave be granted to appeal from the decision of the primary judge.' 'The appeal be allowed.' 'The appellants have leave to use in the Victorian Supreme Court proceedings numbered 9140 of 2003 between Liberty Financial Pty Ltd and Another v Scott and Another the affidavit of Alistair James Jeffery sworn in this...