Alba and Alba and Ors

[2021] FCWA 191

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: ALBA and ALBA & ORS [2021] FCWA 191

CORAM: DUNCANSON J

HEARD: 18 OCTOBER 2021

DELIVERED : 22 OCTOBER 2021

FILE NO/S: 110 of 2013

BETWEEN: MR ALBA

Applicant

AND

MRS ALBA

First Respondent

AND

MS OLSEN

Third Respondent

AND

MR OLSEN

MRS OLSEN

Fourth Respondents

Catchwords:

PRACTICE AND PROCEDURE - waiver of legal professional privilege

Legislation:

Nil

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr A
First Respondent	:	Mr B and Ms H
Third Respondent	:	Self-Represented Litigant
Fourth Respondents	:	Self-Represented Litigants
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Law Firm B
Third Respondent	:	Self-Represented Litigant
Fourth Respondents	:	Self-Represented Litigants
Independent Children's Lawyer	:	Law Firm C

Case(s) referred to in decision(s):

Alba and Alba & Ors [2020] FCWA 130

Nisbet and Nicholson [2021] FCWA 67

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

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

INTRODUCTION

1 [Mr Alba] the father, and [Mrs Alba] the mother are parties to parenting proceedings in relation to their children, [Child A] aged 14 years and [Child B] aged 12 years. Also parties to the proceedings are the maternal aunt, [Ms Olsen] and the maternal grandparents, [Mr Olsen and Mrs Olsen]. The children are represented by an Independent Children’s Lawyer [Ms C] (“the ICL”).

2 A further preliminary issue has arisen at the commencement of these contested parenting proceedings.

3 The father's counsel submitted that the mother has expressly or impliedly waived legal professional privilege over her communications with her former solicitors, [Law Firm D], and with her criminal barrister, [Mr I]. The father sought access to the files of the mother's former legal representatives by way of request or permission to issue subpoenas.

4 The ICL supported the father's submission and also made a similar submission on a different basis. The mother opposed the orders sought by the father.

THE APPLICABLE LEGAL PRINCIPLES

5 The applicable legal principles were succinctly set out by Chief Judge Sutherland in Nisbet and Nicholson [2021] FCWA 67, which I reproduce below:

7In Mann v Carnell (1999) 201 CLR 1, the plurality of the High Court explained wavier of privilege at common law in the following terms:

[28]At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyers evidence as to advice given to the client will be received.

[29]Waiver may be expressed or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

(emphasis added) (citations omitted)

8It is well established that a person may waive legal professional privilege by putting their state of mind in issue in proceedings. As the Full Court of the Federal Court of Australia explained in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 (at [67]), whilst privilege would not be waived in circumstances where a person merely discloses the fact they have received legal advice, a waiver may potentially be effected where that person:

…puts the contents of the legal advice in issue by specifically relying on the contents of that advice (and not merely the fact of the advice) to vindicate [their claimed state of mind].

9The Full Court went on to say (at [68]):

The question is whether, by his particulars, the Commissioner made an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege.

10]In Australian Agricultural Company Ltd v AMP Lift Ltd [2006] FCA 371 (at [34]), Cowdroy J summarised the principle in this way:

In my opinion, in order to waive privilege a party must assert a belief which is likely to have been, or is explicitly said to have been, materially dependent upon legal advice given to that party. In that case the proof or otherwise of belief is dependent upon the legal advice and accordingly privilege is waived. This is the position in cases where the dispute relates to a party’s understanding of its legal position at a given point in time, such as Thomason, Rio Tinto, Ampolex and Fort Dodge.

6 I respectfully agree with Sutherland CJ's summary of these principles.

THE FATHER'S POSITION

7 The father referred to [106] of the mother's trial affidavit filed 28 May 2021, wherein the mother deposed:

On 24 September 2015, I sent the ICL an e-mail to try to communicate how frightening it was becoming. I had to pick my words carefully because I had been told that I could not say the Father was a threat. "[Annexure 4]" is a copy of my email to the ICL of 24 September 2015.

8 The mother’s email to the ICL was copied to the father's former solicitor, [Mr J] of [Law Firm E], and the mother's former solicitors, Law Firm D. Counsel for the father sought access to Law Firm D's file to check whether the advice given to the mother was in fact as she deposed.

9 Counsel for the father also referred to [277] of the mother's said affidavit wherein she deposed:

I did tell my criminal barrister that the father had been violent towards me in the marriage. His response was that I was the one on trial not the Father. My evidence in the District Court trial as to the violence was very short, and was not challenged in cross examination. The Father was asked in cross examination whether he ever hit me and his answer was that he could not remember.

10 Counsel for the father submitted that it seemed inconceivable that, had the mother told her criminal barrister of all of the family violence she says the father was responsible for, more attention to that issue would not have been drawn at the District Court trial. Counsel submitted that the inconsistency and the seniority of the mother's assertions operated as a waiver of legal professional privilege, and that it is something which father should be entitled to explore, not in relation to the truth of the mother's assertions, but in relation to her credibility.

11 Counsel for the father distinguished the waiver in each of the two paragraphs. In relation to [106] he referred to the assertion by the mother of what she was told by a lawyer, which gives rise to the waiver. In relation to [277], the expectation that the issue of family violence would be pursued but was not, gives rise to the waiver.

12 Counsel for the mother opposed the application. Counsel explained the paragraphs in the mother's affidavit rose by reason of, among other things, comments made by Sutherland CJ on 28 July 2020 in her reasons for decision [[2020] FCWA 130] in which her Honour stated that there was little, if any, evidence of family violence led by the mother. Counsel for the mother submitted that barristers in criminal trials make forensic decisions all the time, and that the mother's defence in the trial was run on the basis that she did not commit the act, not that it was committed in self-defence or provocation. Counsel submitted that it was subsequently logical that the mother's criminal barrister may have considered other information to not be relevant to the criminal proceedings, and further that there could not be implied to be an inherent inconsistency between what the mother said and what actually occurred at the trial. Counsel further submitted this application is a fishing expedition by the father to discredit the mother.

13 The ICL adopted the submissions of the father. Additionally, she referred to page 115 of the mother's trial affidavit, an annexed report by [Ms K] upon which the mother relies. Ms K stated at page 34 of the report:

[Mrs Alba] was acutely aware of these effects on her children and wanted to tell the family court about how volatile and controlling and dangerous she believed [Mr Alba] to be. However, her lawyer 'told me … it could make it worse for the kids if I did.'

14 The ICL submitted the mother was now putting into evidence family violence which was important for two reasons:

1Firstly, the father was extensively cross-examined by both the mother's former lawyer [Mr L] and the ICL in the earlier trial before this court, and there was little, if any, evidence of family violence. The ICL submitted the allegations now being made by the mother are of the most significant kind, namely coercive and controlling violence, and noted that while there were flavours of such family violence in the first trial, the mother now goes further to allege physical and sexual violence. The ICL submitted the mother has put her credibility at issue.

2Secondly, the ICL submitted that the mother wants the court to accept her hypothesis relating to the criminal offending and charges, being that against the above-mentioned backdrop of family violence and following Crisford J's orders made 19 May 2015, the father's behaviour escalated, such that he brought a knife to the handover of Child B [in] 2015, in self-defence the mother pushed him, and both he and she were injured.

The ICL submitted that a second hypothesis is that following the abovementioned orders made by Crisford J, the mother's own behaviour escalated, resulting in a fixed paranoia by the mother, that the father was at least a risk to the children, but now arguably to herself.

15 The ICL submitted the mother put into play her state of mind and, on that basis, that in addition to the submissions made by the father, the mother has waived privilege.

16 In reply, counsel for the mother submitted that the escalating behaviour by the father was not the reason the allegations of family violence were included in her affidavit and that the father and the ICL have been on notice for some time of the type of behaviour of the father that the mother alleges.

DISCUSSION AND CONCLUSION

17 I have considered the submissions carefully. By way of background I have also considered carefully the terms of Sutherland CJ's reasons for decision in this matter [[2020] FCWA 130] (supra) in which her Honour made various comments regarding the mother's allegations of family violence in the earlier proceedings.

18 At [12] of her reasons, Sutherland CJ stated that in both the mother's case information affidavit and Form 4 notice filed in support of her response the mother did not raise any issues in relation to family violence save that in her case information affidavit she alleged the father was "controlling".

19 At [13] Sutherland CJ stated with reference to the mother's trial documents that aside from sexual abuse allegations:

•the mother led little, if any evidence alleging that the father had subjected her and/or the children to family violence:

•the mother did not submit that the children were otherwise at risk of harm from the father; and

•the mother did not raise family violence as being an issue, either in relation to parental responsibility or as a relevant consideration in the determination of the children's best interests.

20 At [15] Sutherland CJ stated:

… However, I am satisfied that: (1) for the purposes of the 2015 trial, the mother did not maintain that family violence was a relevant factor in determining the issue of parental responsibility or the children’s best interests; …

21 The above context is relevant to my determination of the issue of whether the mother has waived legal professional privilege.

22 I am not persuaded that [106] of the mother's trial affidavit gives rise to a waiver as submitted by counsel for the father. The mother does not say that she was told by her lawyer that she could not say the father was a threat. She does not say who told her that. The paragraphs before and after [106] refer to her discussions with [Dr M]. In these circumstances I am not prepared to infer that what the mother had been told was by her lawyer.

23 However, I accept that the mother's evidence at [277] gives rise to the waiver. In deposing what she told her criminal barrister and what his response was, the mother's conduct is inconsistent with the maintenance of confidentiality and thus effects the waiver of the privilege. Consequently, the files of Mr I should be produced for inspection. As proposed by the mother's counsel, if I found that privilege had been waived, the files of the mother's instructing solicitor in the criminal proceedings, [Mr N] should also be produced.

24 I accept the ICL's submission that the mother's reliance on the report of Ms K, which refers to family violence and contains a quote of what the mother’s lawyer told her, similarly effects a waiver of the privilege.

25 As outlined by the ICL the mother has put her state of mind in issue by reference to her belief that the father was volatile, controlling and dangerous, in contrast to her position in 2015, and by reference to the legal advice she received.

26 The files of the mother’s lawyers Law Firm D, should also be produced for inspection.

27 I shall hear from counsel, the ICL and the third and fourth respondents as to the form of the orders to be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CL

Judicial Support Officer

22 MARCH 2022