Liberty Funding v Phoenix Capital Ltd [2004] FCA 1640

Liberty Funding v Phoenix Capital Ltd [2004] FCA 1640

The Jeffrey affidavit, prepared and filed pursuant to court order and in contemplation of mediation, is subject to legal professional privilege, and such privilege is not lost by service of the affidavit or by filing; waiver does not occur absent later use in evidence or unfair conduct. Leave to use the affidavit in other proceedings is therefore refused.

Jurisdiction
Australia
Judgment Date
15 December 2004
Procedural Posture
Notice of Motion / Ruling on Application for Leave to Use Affidavit in Other Proceedings
Outcome
Application dismissed
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'use of Affidavits in Proceedings']
['evidence'] ['legal Professional Privilege' 'waiver of Privilege' 'use of Affidavits in Proceedings']

Case Brief

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Procedural Posture

Notice of Motion / Ruling on Application for Leave to Use Affidavit in Other Proceedings

Legal Issues

  1. 1 ['Whether the Jeffrey affidavit is subject to legal professional privilege' 'Whether privilege in the affidavit has been waived' 'Whether leave should be granted to use the affidavit in other proceedings']

Ratio Decidendi

The Jeffrey affidavit, prepared and filed pursuant to court order and in contemplation of mediation, is subject to legal professional privilege, and such privilege is not lost by service of the affidavit or by filing; waiver does not occur absent later use in evidence or unfair conduct. Leave to use the affidavit in other proceedings is therefore refused.

Court Disposition

Application dismissed

Orders

  • ['The notice of motion of the applicants filed on 23 November 2004, as amended on 29 November 2004, be dismissed.' "The applicants pay the respondent's costs of and incidental to the motion."]