Daymond & Anor and Daymond & Ors

FAMILY COURT OF AUSTRALIA

DAYMOND AND ANOR & DAYMOND AND ORS [2012] FamCA 1041

FAMILY LAW – EVIDENCE – Admissibility – where application made to rely on affidavit of solicitor – where affidavit objected to on basis that annexures contained privileged correspondence – whether the Court ought examine the contents of the affidavit before making a determination – consideration of the Evidence Act 1995 (Cth) – where the Court can have regard to the affidavit in ascertaining whether its contents are privileged – whether the contents of the affidavit sought to be relied upon were privileged – where the absence of the words ‘without prejudice’ does not, of itself, prove that a document is not privileged – where the applicant contended that the documents annexed to the affidavit were evidence of a concluded agreement and therefore not privileged – where the annexures were proof of counter-proposals and privileged.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Bradford v Bradford (1996) 19 Fam LR 488
GPI Leisure Corp Ltd v Yuill (1997) 42 NSWLR 225
New South Wales v Jackson [2007] NSWCA 279

1^st APPLICANT: Ms M Daymond

2^nd APPLICANT: Ms R Daymond

1^st RESPONDENT: Mr D Daymond

2^nd RESPONDENT: Mr I Daymond

3^rd RESPONDENT: P Pty Ltd

3^rd PARTY: Mr A Daymond

FILE NUMBER:	BRC	18	of	2011
FILE NUMBER	BRC	11578	of	2010

DATE DELIVERED: 3 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 3 December 2012

REPRESENTATION

COUNSEL FOR THE 1^ST APPLICANT: Mr George

SOLICITOR FOR THE 1^ST APPLICANT: A M Law

COUNSEL FOR THE 2^ND APPLICANT: Mr Hackett

SOLICITOR FOR THE 2^ND APPLICANT: Bruce Dulley Family Lawyers

COUNSEL FOR THE 1^ST, 2^ND, 3^RD

RESPONDENTS:

Ms Carew

SOLICITOR FOR THE 1^ST, 2^ND, 3^RD

RESPONDENTS:

Best Wilson Family Law

COUNSEL FOR THE 3^RD PARTY: Mr Williams

SOLICITOR FOR THE 3^RD PARTY: Shannon Donaldson Province Lawyers

Orders

1. The oral application by the First Applicant for leave to rely upon the affidavit of Andrew Anthony George, filed 28 November 2012, is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daymond and Anor & Daymond and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC18/2011 and BRC11578/2010

Ms M Daymond

1^st Applicant

And

Ms R Daymond

2^nd Applicant

And

Mr D Daymond

1^st Respondent

And

Mr I Daymond

2^nd Respondent

And

P Pty Ltd

3^rd Respondent

And

Mr A Daymond

3^rd Party

EX TEMPORE

REASONS FOR JUDGMENT

1. At the outset of the continuation of these trial proceedings before me, an application was made for leave to file an affidavit by the solicitors for the first applicant. 

2. Counsel for the respondents, who are collectively each of two husbands and a corporation…