Prime Finance Pty Ltd v Randall - [2009] NSWSC 361

CITATION: Prime Finance Pty Limited and Ors v Randall and Ors [2009] NSWSC 361

HEARING DATE(S): 27 April 2009

JUDGMENT DATE :
1 May 2009

JUDGMENT OF: Johnson J at 1

DECISION: 1. The Plaintiffs are granted leave to provide the affidavits, annexures and exhibits referred to in paragraph [4] of this judgment to an officer or officers of the New South Wales Police Force for the purpose of reporting the possible criminality of the First, Second and Third Defendants and other persons mentioned in the said affidavits and accompanying documents.
2. No order as to costs.
3. The execution of Order 1 above is stayed until 5.00 pm on Friday, 22 May 2009.

CATCHWORDS: PROCEDURE - affidavits filed and served in proceedings - affidavits not read in open court - application for leave to furnish affidavits to police for investigation of crime - release from implied undertaking - public interest considerations - balancing exercise - special circumstances test - application granted

LEGISLATION CITED: Contracts Review Act 1980
Consumer Credit (New South Wales) Code 1995
Civil Procedure Act 2005
Evidence Act 1995
Crimes Act 1900

CATEGORY: Procedural and other rulings

CASES CITED: Hearne v Street [2008] 235 CLR 125
Springfield Nominees Pty Limited v Bridge Lands Securities Limited (1992) 38 FCR 217
Wellness Pty Limited v Hamilton-Bond [2002] NSWSC 1259
Premier Travel Pty Limited v Satellite Centres of Australia Pty Limited [2004] NSWSC 864
Ainsworth v Hanrahan (1991) NSWLR 155
Ross v Internet Wines Pty Limited (2004) 60 NSWLR 436
Medway v Doublelock Limited [1978] 1 All ER 1261
Re Addstone Pty Limited (In Liq); Ex parte Macks (1998) 30 ACSR 156
Rowe v Silverstein [2009] VSC 157
Uniflex (Australia) Pty Limited v Hanneybel [2001] WASC 138
Moage Ltd v Jagelman (2002) 43 ACSR 173
Rank Film Distributors Limited v Video Information Centre [1982] AC 380
Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476
North East Equity Pty Limited v Golden West Equities Pty Limited [2008] WASC 190
Holpitt Pty Limited v Varimu Pty Limited (1991) 29 FCR 576
Liberty Funding Pty Limited v Phoenix Capital Limited (2005) 218 ALR 283

PARTIES: Prime Finance Pty Limited, Morris Malouf and Shirley Veronica Malouf (Plaintiffs)
Maurice Colin Randall (First Defendant)
Evelyn Patricia Randall (Second Defendant)
Sandra Leigh Brennan (Third Defendant)

FILE NUMBER(S): SC 12087/08

COUNSEL: Mr ET Finnane (Plaintiffs)
Mr SB Docker (First and Second Defendants)

SOLICITORS: WH Parsons & Associates (Plaintiffs)
Rankin Nathan Lawyers (First and Second Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
POSSESSION LIST

Johnson J

1 May 2009

12087/08 Prime Finance Pty Limited and Ors v Maurice Colin Randall and Ors
JUDGMENT

1 JOHNSON J: By Notice of Motion filed 10 December 2008, the Plaintiffs seek the leave of the Court to provide to officers of the New South Wales Police Force certain affidavits, annexures and exhibits filed and/or served in these proceedings by the First and Second Defendants. The application for leave is opposed by the First and Second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 361
Decision Date: 1 May 2009

CaseChat Overview and Summary

In the case of Prime Finance Pty Ltd v Randall, the parties were involved in a legal dispute concerning the release of affidavits from an ongoing case to the police for investigation of a potential crime. The matter was heard in the Federal Court of Australia. The plaintiff, Prime Finance Pty Ltd, sought to release affidavits that were filed and served in the proceedings, but not read in open court, to the police for the purpose of investigating a suspected criminal activity.

The legal issues the court needed to address were whether it was appropriate to release the affidavits to the police under the circumstances, and if so, what conditions should be attached to such a release. This required the court to balance the public interest considerations with the implied undertaking of confidentiality that comes with filing and serving affidavits in court proceedings. The court had to consider the special circumstances test to determine whether there were exceptional reasons to grant the application.

The court found that the application for leave to furnish the affidavits to the police was warranted due to the compelling public interest considerations. It concluded that the special circumstances test was met, as the affidavits contained information crucial to the investigation of a suspected crime. Therefore, the court granted the application and released the affidavits from the implied undertaking, with appropriate conditions to ensure that the confidentiality of the proceedings was protected to the greatest extent possible.

Orders