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…

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: [2021] FCWA 191
Decision Date: 22 OCTOBER 2021

CaseChat Overview and Summary

The case of Alba and Alba and Ors was heard by the Federal Court of Australia, where the primary issue was whether certain documents were protected by legal professional privilege. The plaintiffs sought to have certain documents withheld from disclosure in a legal proceeding, arguing that they were privileged. The defendants contested this, claiming that the privilege had been waived. The court had to determine whether the privilege applied and, if so, whether it had been effectively waived.

The central legal issue before the court was whether the communication between the plaintiffs and their legal representatives was protected by legal professional privilege and, if so, whether any subsequent actions by the plaintiffs amounted to a waiver of that privilege. The court considered whether the plaintiffs had taken steps that indicated an intention to abandon the privilege, such as by disclosing the privileged information to third parties. The court also had to interpret the relevant provisions of the Evidence Act 1995 (Cth) to ascertain the scope and limits of legal professional privilege.

The court found that the documents in question were indeed protected by legal professional privilege, as they were communications between the plaintiffs and their legal representatives, made for the dominant purpose of seeking legal advice. However, the court concluded that the privilege had been waived. This was based on evidence that the plaintiffs had disclosed the contents of the privileged documents to a third party without a legal compulsion or obligation to do so. The court held that such disclosure constituted an unequivocal intention to abandon the privilege, and thus, the privilege was lost. The court's reasoning was based on established principles of law regarding the waiver of legal professional privilege and the circumstances under which it may be deemed to have been abandoned.

The court ordered that the documents in question be disclosed to the defendants. This decision underscores the importance of maintaining confidentiality in lawyer-client communications and the potential consequences of breaching that confidentiality. The court's ruling highlights the need for legal representatives to advise their clients on the importance of preserving legal professional privilege and the risks associated with any inadvertent waiver of that privilege.

Orders