//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2004] FCAFC 133
appellant. Granted a stay of Order 3 made 23 June 2003 until midnight on 10 June 2004 on the undertakings given by Mr Griffin and his solicitor; liberty to apply on two days' notice; parties may approach...
No linked legislation citations have been extracted yet.
The Full Court granted a short stay (until 10 June 2004) of an order requiring delivery up of documents on terms. The stay was granted to allow the appellant to seek special leave to the High Court, because the Court accepted there were matters of public importance in the issues and because the appellant and his solicitor gave undertakings to pursue special leave quickly and to preserve the privileged documents until determination. Liberty to apply and referral to a single judge for stay matters were also ordered; costs reserved.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,900 words · generated 19/07/2026
This appeal arises from a dispute over a public examination and a claim of privilege against self‑incrimination. The primary judge made orders (including Order 3 of 23 June 2003) requiring Mr David James Griffin to answer questions at a public examination and to produce particular documents. Griffin appealed to the Full Court. On 11 May 2004 the Full Court dismissed the appeal (Reasons [1]). Immediately after that dismissal the trustee of the bankrupt estate, Mr Pantzer, through his solicitors, demanded compliance with the primary judge's order requiring delivery up of the documents; those documents were physically in the possession of Griffin's solicitor who had earlier given an undertaking to preserve them pending the litigation (Reasons [2]–[3]).
Griffin sought a stay of the delivery order so he could apply for special leave to the High Court. He gave an undertaking to the Court through counsel to pursue any application for special leave with all reasonable expedition, to file promptly an application for expedition, and to preserve and maintain the privileged documents in his solicitor's control. The solicitor, Mr John North, also undertook to preserve the privileged documents at his Sydney office irrespective of instructions to the contrary until determination of the special leave application and, if special leave were granted, until determination of any appeal; he further undertook to deliver the documents immediately if special leave were dismissed or any substantive appeal to the High Court were dismissed (Reasons [3], [10]).
The trustee opposed the stay, pointing to prejudice in the administration of the estate and related investigations that would arise from further delay and cost if the documents were not delivered (Reasons [5]). The Full Court (Ryan, Heerey & Allsop JJ) accepted that the delivery of the documents to the trustee would, at least in part, destroy the present efficacy of the claimed privilege, but did not accept the appellant's submission that the subject matter would be entirely destroyed were a stay refused (Reasons [4]). Weighing the competing considerations, the Court concluded that a short stay was appropriate to permit the appellant to seek special leave to the High Court, and ordered the stay be granted until midnight on 10 June 2004 on the undertakings provided, with liberty to apply and leave to approach Allsop J in the first instance in respect of stay-related matters; costs of the stay application were reserved (Reasons [6]–[10]).
The Court's decision was driven by three inter-related considerations.
Preservation of the subject matter and the efficacy of privilege: The Court accepted that delivery of the privileged documents to the trustee would at least partially destroy the present effectiveness of the privilege claimed (Reasons [4]). The preservation of documents in custody pending determination of higher appellate jurisdiction was therefore an important protective measure. The appellant’s and solicitor’s undertakings addressed this immediate risk.
Public importance of the issues: The Court accepted the submission that there were matters of public importance in the issues underlying any application for special leave to the High Court (Reasons [6]). This was influential in the Court's willingness to permit the appellant an opportunity to pursue High Court intervention rather than immediately enforcing the delivery order, which would likely have foreclosed that appellate avenue.
Proportionality and balance of convenience: The trustee’s asserted prejudice from delay (management of the bankrupt estate and related investigations) was acknowledged (Reasons [5]). The Court did not accept that those considerations outweighed the countervailing public interest and the effective protections offered by the undertakings. The Court considered a short, defined stay sufficient and proportionate, and declined the appellant’s request for an extremely short stay designed simply to allow immediate chamber approach to a High Court Justice, noting practicalities and fairness, the appellant should have a reasonable though short time to prepare applications for special leave and expedition (Reasons [7]–[8]).
By granting a time‑limited stay on explicitly protective undertakings, and by providing procedural mechanisms (liberty to apply; initial approach to Allsop J), the Court sought to preserve the appellate path without unduly prejudicing the trustee.
Before this decision, principles relevant to stays pending appeal or application for special leave were established: courts must balance prejudice to the respondent and the public interest in permitting appellate review, and may impose conditions (including undertakings) to mitigate prejudice.
This Full Court decision applies those familiar interlocutory balancing principles to the specific factual matrix of privilege and public examination: it demonstrates that
The decision is consistent with established discretionary interlocutory relief principles, but emphasises practical conditions (timing, preservation, undertakings) when privileged material is at risk. It does not purport to alter the core law on stays and privilege; rather it applies established principles in a concrete setting.
Selected passages and plain-English explanations:
Reason [3]: "Mr Griffin has agreed to undertake ... to pursue any application for special leave with all reasonable expedition ... and to preserve and maintain the privileged documents ... in the control of his solicitor..."
Reason [4]: "That is not entirely accurate. However, part of the subject matter of the proceedings would be destroyed in that the documents ... would go to the trustee thereby, arguably, destroying the privilege in them or at least its present relevant efficacy."
Reason [6]: "We accept the submission ... that there are matters of public importance in the issues underlying any application for special leave ... we do not think we should refuse a short stay which refusal would, or may, have the effect of undermining the value in a matter of public importance of an application for special leave to the High Court."
Reason [7]: "We do not think that the stay should be so because it would require a Justice of the High Court to determine the application in an unnecessarily short time."
Reason [8]: "We think that Mr Griffin should have until 10 June, that is about four weeks, to undertake those matters."
This Full Court decision will be relevant where the following factual features are present:
Where these elements are present, and the balancing exercise favours preservation of the status quo for a short, defined period, the Court is likely to grant a short conditional stay rather than immediate enforcement.
This Reasons for Judgment does not discuss subsequent judicial treatment or authority applying, distinguishing or otherwise handling Griffin v Pantzer. The Full Court confined its reasoning to the interlocutory exercise before it and set specific, case‑bound undertakings and a defined temporal limit for the stay (Reasons [8]–[10]). Any account of later treatment would require review of subsequent authorities and databases; that is beyond the material in this judgment itself.
Practitioners should therefore treat this decision as an example of applied interlocutory discretion on stays where privileged documents and potential High Court review intersect, while consulting later authorities to determine whether and how other courts have followed, distinguished, or refined the approach exemplified here.
The judgment leaves several issues open or for further elaboration in future cases:
Threshold for 'matters of public importance': The Court accepted the existence of matters of public importance in this case (Reasons [6]) but did not elaborate a test or threshold for when an issue qualifies as sufficiently important to influence stay relief. Future decisions may clarify how significant or novel an issue must be.
Quantum and form of undertakings: The Court accepted the undertakings given here (expedition, preservation, solicitor’s independent preservation). It did not specify alternative forms of security (for example, third-party custody, sealed envelopes, or court supervision) or when those might be required. The precise content and enforceability standards for such undertakings remain to be developed.
Degree of prejudice required to refuse a short stay: The trustee led evidence of prejudice to estate management and investigations arising from delay (Reasons [5]). The Court did not set a clear calibration for when such prejudice outweighs the public interest in permitting appellate review and preservation of privilege; further decisions may define how to weigh operational prejudice in different contexts.
Duration and extension of stays: The Court fixed a four‑week stay and gave liberty to apply for extension, initially to Allsop J (Reasons [8]–[9]). The circumstances in which extensions will be granted, and the level of justification required, will evolve through subsequent interlocutory jurisprudence.
Interaction with execution of trustee powers: The decision leaves open more detailed questions about how enforcement of trustee powers interacts with interlocutory stays where privilege and appellate rights are claimed, especially in insolvency contexts where delay can be costly or cause irreversible effects.
Practitioners should see Griffin v Pantzer as authoritative on the proposition that a short, conditional stay may be granted to allow pursuit of High Court review where privileged material is at risk and reasonable undertakings are offered, while recognising that the boundaries and precise operationalisation of that principle are matters for later development.
REASONS FOR JUDGMENT The Court: 1 On 11 May 2004, the Court dismissed an appeal from orders made by the primary judge dismissing an application by Mr David James Griffin in which he sought orders to the effect that he was not obliged to answer questions at a public examination and produce certain documents by reason of the privilege against self incrimination: see Griffin v Pantzer [2004] FCAFC 113. 2 On that day, 11 May 2004, the solicitors for the trustee (the respondent to the appeal) demanded compliance with order number 3 made by the primary judge, requiring delivery up of the documents over which the claim for privilege had been made. Those documents were in the possession of the solicitors for Mr Griffin. That solicitor had given an undertaking to keep those documents in existence pending the outcome of the litigation. 3 Mr Griffin wishes to seek special leave of the High Court to appeal from the orders made by this Court on 11 May. The trustee of his estate, Mr Pantzer, will not agree to a stay of the orders pending that application. Mr Griffin has agreed to undertake to the Court to pursue any application for special leave with all reasonable expedition and promptly to file an application for expedition of that special leave application. Mr Griffin also undertakes to preserve and maintain the privileged documents marked for identification before the primary judge in control of the solicitor Mr John North of North & Badgery at its Sydney office. Mr North has also undertaken to the Court to continue to preserve and maintain the privileged documents at his office in Sydney until the determination of the application for special leave and if special leave be granted the determination of the appeal and to deliver the privileged documents immediately to the respondent if the application for special leave be dismissed or upon the dismissal by the High Court of any substantive appeal. 4 Mr Street SC who, with Mr Wendler, appeared for Mr Griffin submitted that the subject matter of the litigation would be destroyed unless a stay were granted. That is not entirely accurate. However, part of the subject matter of the proceedings would be destroyed in that the documents over which privilege is claimed would go to the trustee thereby, arguably, destroying the privilege in them or at least its present relevant efficacy. Mr Griffin has not yet been asked questions in an examination. 5 Ms Painter, who appeared for Mr Pantzer, did not dispute in any substantive way that the subject matter of the appeal would, at least in part, be destroyed. Rather, the prejudice pointed to was in the management and conduct of the bankrupt estate and in related investigations and proceedings in relation to Mr Griffin's wife, such prejudice arising from further delay and costs. 6 We do not propose to approach the application on the basis that there is attendant doubt in our orders. However, we accept the submission of Mr Street that there are matters of public importance in the issues underlying any application for special leave. Whilst we are not prepared to acknowledge that our orders are attended by doubt, we are, nevertheless, of the view that it is appropriate to permit Mr Griffin to seek special leave to appeal. Others may have a different view as to our reasons. In all the circumstances we do not think we should refuse a short stay which refusal would, or may, have the effect of undermining the value in a matter of public importance of an application for special leave to the High Court. 7 Mr Street suggested a short stay until next week in order that he might approach a Justice of the High Court in chambers. We do not think that the stay should be so because it would require a Justice of the High Court to determine the application in an unnecessarily short time. We think that the applicant should have a reasonable, though short, time to prepare an application for special leave and an application for expedition and to approach the High Court with such applications. Within that application, and depending upon the views taken by any Justice or Justices of the High Court it may be that it is thought appropriate that the High Court or this Court deal with any application for a further stay. 8 We think that Mr Griffin should have until 10 June, that is about four weeks, to undertake those matters. 9 We will grant liberty to apply. Also, we grant leave to the parties to approach Allsop J, as a single judge, in the first instance, in relation to any application concerning the stay including its variation, discharge or extension. 10 The orders which we propose to make are as follows: Upon the undertaking of David James Griffin to the Court through his counsel to pursue any application for special leave with all reasonable expedition as soon as reasonably practicable to file an application for expedition and to preserve and maintain the privileged documents marked for identification 3.1A, 3.2A, 3.3A and 3.4A in the control of his solicitor Mr John Frederick Stuart North of North & Badgery at its Sydney Office; and Upon the undertaking of John Frederick Stuart North to the Court to continue to preserve and maintain the privileged documents at his office in Sydney irrespective of any instructions to the contrary until the determination of the application for special leave and if special leave be granted the determination of the appeal and to deliver the privileged documents immediately to the respondent if the application for special leave be dismissed or if any appeal to the High Court of Australia is dismissed. The Court Orders:
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Heerey & Allsop JJ.
Associate: Dated: 18 May 2004 Counsel for the Appellant: Mr A.W. Street SC and Mr G.D. Wendler
Solicitor for the Respondent: Peter Kemp Solicitors
Griffin
Pantzer
Granted a stay of Order 3 made 23 June 2003 until midnight on 10 June 2004 on the undertakings given by Mr Griffin and his solicitor; liberty to apply on two days' notice; parties may approach Allsop J in the first instance regarding matters concerning the stay (variation, discharge, extension); costs of the stay application reserved (Orders).