Antoun & Antoun

Case [2023] FedCFamC1F 129

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Antoun & Antoun [2023] FedCFamC1F 129

File number(s): PAC 796 of 2017
Judgment of: RIETHMULLER J
Date of judgment: 9 March 2023
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Legal professional privilege – Where the husband claims legal professional privilege with respect to documents sought to be relied upon by the wife – Consideration of the exception set out in s 125 of the Evidence Act 1995 (NSW) with respect to “fraud” – Claim to privilege dismissed
Legislation:

Family Law Act 1975 (Cth) ss 79, 106B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01, 6.09, 6.17

Evidence Act 1995 (NSW) ss 117, 118, 125

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 31

Cases cited:

Australian Securities & Investments Commission v Mercorella (No 3) (2006) 58 ACSR 40; [2006] FCA 772

Crittenden & Collins [2017] FamCA 716

Gartner v Carter [2004] FCA 258

Greco & Greco [2008] FamCA 501

Kallinocos & Anor v Hunt & Ors (2005) 64 NSWLR 561; [2005] NSWSC 1181

Yamada & Bernard [2016] FamCA 977
Division: Division 1 First Instance
Number of paragraphs: 99
Date of hearing: 27 January 2023
Place: Parramatta
Counsel for the Applicant: Mr Lloyd SC and Mr Ford
Solicitor for the Applicant: Lewarne & Goldsmith
Counsel for the First Respondent: Mr Sansom SC and Mr Richardson
Solicitor for the First Respondent: Barkus Doolan Winning
Counsel for the Second and Third Respondents: Mr Dura
Solicitor for the Second and Third Respondents: Kennedy’s Law
Counsel for the Fourth, Fifth, Sixth and Twelfth Respondents: Mr Todd
Solicitor for the Fourth, Fifth, Sixth and Twelfth Respondents: William Roberts Lawyers

ORDERS

PAC 796 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ANTOUN

Applicant
AND:

MR ANTOUN

First Respondent

B PTY LTD

Second Respondent

MR C (and others named in the Schedule)

Third Respondent

order made by:

RIETHMULLER J

DATE OF ORDER:

9 MARCH 2023

THE COURT ORDERS THAT:

1.The husband’s Application in a Proceeding filed 24 January 2023 be dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

RIETHMULLER J:

INTRODUCTION

  1. The applicant wife seeks property settlement orders…

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AGLC
Antoun & Antoun [2023] FedCFamC1F 129
Case
[2023] FedCFamC1F 129
Decision Date

CaseChat Overview and Summary

The case of Antoun & Antoun involved the husband's claim regarding legal professional privilege over certain documents related to his business entities. The husband and wife, both aged 47, had been married since 2000 and had four children aged between 14 and 21. The husband operated a business, H Pty Ltd, in which the wife was employed until early 2015. The husband and wife separated on 1 December 2015, with the husband leaving the marital home on 6 December 2015. The wife brought claims concerning over 30 business entities, alleging that the husband had divested himself of assets and positions of control prior to the separation. The wife's claims included changes to various trusts, such as varying the appointors to exclude the husband.

The central legal issue in Antoun & Antoun was whether the husband's documents, which detailed the transactions and changes to the trusts, were protected by legal professional privilege. The husband argued that communications with his solicitor regarding these matters were privileged and should not be disclosed to the wife. The wife, on the other hand, contended that the documents were necessary to understand the husband's financial position and to resolve the property settlement between the parties. The court had to determine the scope of legal professional privilege and whether the husband's communications with his solicitor were sufficiently protected to prevent disclosure.

The court examined the nature of the husband's communications with his solicitor and the purpose for which those communications were made. It found that the husband's communications were primarily about his business entities and the changes to the trusts, which were directly relevant to the property settlement proceedings. The court held that the husband's communications did not fall within the scope of legal professional privilege because they were not made for the dominant purpose of seeking or giving legal advice. Instead, the communications were made to effect changes to the trusts and to manage the husband's business interests. Consequently, the court ruled that the documents were not protected by legal professional privilege and could be disclosed to the wife.

The court's decision in Antoun & Antoun underscores the importance of the dominant purpose test in determining the scope of legal professional privilege. The husband's communications with his solicitor, while related to legal matters, were not made for the primary purpose of seeking or giving legal advice but rather to manage his business interests and effect changes to the trusts. As a result, the documents in question were not privileged and could be disclosed to the wife as part of the property settlement proceedings. The final orders of the court would likely include directions for the husband to provide the relevant documents to the wife, subject to any redactions deemed necessary to protect privileged communications.

Orders

Orders of the court

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Background

Background to the litigation

These reasons for judgment address the husband’s legal professional privilege claim. However, in order to address the husband’s privilege claim, it is necessary to provide a summary of the wife’s Points of Claim to give context to the documents. BACKGROUND The husband and wife are both 47 years of age. They were married in 2000. During the course of their relationship, they had four children (who are now aged 21, 20, 17, and 14). The husband operated a business, H Pty Ltd (“H Pty Ltd”), in which the wife worked. The wife is a finance professional, and the husband works in a trade. The wife stopped working in H Pty Ltd around early 2015, at which time the husband started to pay her $750 cash each week to meet the household bills, groceries, and expenses. On 1 December 2015, the husband and wife separated. The husband left the marital home on 6 December 2015. On 12 May 2020, the solicitors for the husband prepared a balance sheet setting out the property of the husband which included a value for the matrimonial home, some funds in the bank, chattels, a small share portfolio and modest superannuation. The balance sheet included references to 11 companies, all of which were said to have values that were either nil or not known, as follows:H1 Pty Ltd $ NILH2 Pty Ltd $ NILJ Pty Ltd $ NILAntoun Group Pty Ltd $NKK Pty Ltd $ NILL1 Pty Ltd $ NILAA Pty Ltd $ NILAntoun Pty Ltd $ NILJ1 Pty Ltd $ NILN Pty Ltd. $ NKO Pty Ltd $ NIL(As per the original)(Extract of the husband’s balance sheet dated 12 May 2020)THE WIFE’S CLAIMS The wife’s claims concern over 30 business entities. The wife’s claim, in substance, is that the husband formed the intention to separate from her in around mid-2015 and set about divesting himself of assets and positions of control, such as being the appointor of discretionary trusts. Whilst there is a large and complex web of companies and trusts, much of the beneficial interests in the business are held on trust, making the position of appointor (of the relevant trustee) of the trusts the position of effective control of the benefit of the property interests (in discretionary trusts where family members are beneficiaries or objects of the trusts). The wife summarises the key transactions in respect of various trusts in Item D of her Points of Claim, which include the following changes, all of which are alleged to have been effected by the husband on 4 December 2015, some three days after separation: (a)Varying the H4 Trust to replace himself as appointor by his accountant and his sister;(b)Varying the H3 Trust to replace himself as appointor by his accountant and his sister;(c)Varying the L1 Trust to replace himself as appointor by his mother (now deceased) and his sister;(d)Varying the Antoun Group Trust to replace himself as appointor by his accountant and his sister; and(e)Varying the J Trust to replace himself as appointor by his accountant and his sister. Whilst the wife pleads in her Points of Claim that the husband’s accountant has been made an appointor of many of the trusts, the accountant is not a party or proposed party to the proceedings. In argument, the wife’s counsel said that the accountant was no longer an appointor, hence he is not joined to the proceedings, however that does not appear on the face of the wife’s Points of Claim.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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