Bardon and Bardon

[2018] FamCA 72

FAMILY COURT OF AUSTRALIA

BARDON & BARDON [2018] FamCA 72

FAMILY LAW – PRACTICE AND PROCEDURE – Privilege – Where existing court orders required the wife to provide disclosure in relation to criminal proceedings taken against her – Where the wife objects to provision of disclosure required by the orders due to interpretative difficulties – Where the orders were not drawn too broadly – Where the wife argued that material was subject to statutory and common law privilege and the order should not be made for policy considerations – Court finds that redacting documents can properly address those issues.

Kowaliw and Kowaliw (1981) FLC 91-092

APPLICANT: Ms Bardon

RESPONDENT: Mr Bardon

FILE NUMBER: SYC 4449 of 2009

DATE DELIVERED: 19 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 30 January 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cleverley

SOLICITOR FOR THE RESPONDENT: Mr Jamieson

Orders

1. By way of notation, that narrative in respect of any privileged legal advice contained in the documents produced in compliance with orders 2(c) and 2(d) made on 12 July 2017 may be redacted.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4449  of 2009

Ms Bardon

Applicant

And

Mr Bardon

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Ms Bardon (“the wife”) and Mr Bardon (“the husband”) are engaged in litigation concerning alteration of property interests.  On 12 July 2017 I made the following orders and directions by consent:

   1.     That the wife file and serve a further Updated Financial Statement by 19 July 2017.

   2.     That the wife by way of disclosure shall provide copies of the following documents by 1 August 2017:

   a.the profit and loss statements, balance sheets and bank statements for [Ms Bardon] from 1 January 2008 to date

   b.copy of all bank statements, including loan accounts and credit card statements owned or operated by [Ms Bardon] from 1 January 2008 to date

   Husband's proposed order subject to order 6

   c.a copy of all invoices, fee notes, receipts and itemised bill of costs in relation to the criminal proceedings taken against [Ms Bardon] involving all Court proceedings including but not limited to the District Court, Court of Criminal Appeal and the High Court subject to Order 6 below

   Husband's proposed order subject to order 6

   d.in respect of legal costs and disbursements paid in respect of such proceedings, a copy of all bank statements showing the source of payments of such costs subject to Order 6 below

   e.a copy of the Trust Deed and all other documents relating to the formation, and operation of the parties' self-employed superannuation fund, known as [B] Personal Superannuation Fund

   f.a copy of profit and loss statements and balance sheets in respect of [B] Personal Superannuation Fund from 1 January 2008 to date, not already provided

   g.a copy of bank statements and any other records of shares or investments of the [B] Personal Superannuation Fund [to] date not already provided.

   3.     In respect to the allegation of waste in the form of gambling by the husband the wife is to provide by 1 August 2017:

   a.a summary of each of the alleged transactions she contends is monies used by the husband to gamble

   b.copies of all source documents and primary records from which the summary is compiled provided as one document with all pages numbered consecutively

   c.the wife shall identify each transaction in the summary by reference to the page numbers of the primary and source documents provided in 3(b) above.

   4.     That the wife provide to the husband by 1 August 2017 the following documents to enable the husband to complete his income taxation returns:

   a.any Land Tax Assessment received for the 2016 tax year

   b.in respect to the property [C Street, Suburb D], Tasmania all documents relating to the income received and expenses incurred for the 2009 to 2013 Taxation years

   c.all documents required to calculate the Capital Gains Tax liability on the sale of [E Street, Suburb D].

   5.     That the husband by way of disclosure provide copies of the following documents by 1 August 2017:

   a.copy of all bank statements, including loan accounts and credit card statements owned or operated by [Mr Bardon] from 1 January 2008 to date.

   6.     In respect to 2(c) and (d) above:

   a.the wife is to file by email to her Honour's Associate by 5.00 pm on Friday, 14 July 2017 her submissions and Authorities in respect to the contention that the documents sought are subject to privilege or not otherwise protected and

   b.the husband is to respond by 5.00 pm on Wednesday, 19 July 2017

   and the matter is thereafter to be determined by her Honour in chambers."

2. Pursuant to paragraph 6 of these orders and directions, the wife and the husband filed written submissions on 14 July 2017 and 19 July 2017 respectively.  I now issue my ruling in relation to the wife's claim of privilege in regard to the documents to which reference is made in orders 2(c) and 2(d) of 12 July 2017.

Background

1. Finalisation of the substantive proceedings for property settlement has been delayed for considerable periods due to criminal proceedings in which the wife has been engaged, arising from certain conduct alleged against her.  She was committed to stand trial in the District Court of New South Wales in 2013.  The wife filed a Notice of Motion by which she sought, inter alia, orders that the indictment be quashed and for a permanent stay of the proceedings.  This Notice of Motion was dismissed by the District Court.

2. The wife appealed to the Court of Criminal Appeal and one count of the indictment was permanently stayed and the appeal was dismissed otherwise.  The Director of Public Prosecutions sought special leave to appeal to the High Court of Australia, which was granted.  The appeal was allowed by the High Court.  The orders of the Court of Criminal Appeal were set aside, and, in lieu thereof, the appeal to that court was dismissed.

3. The legal representative of the husband has indicated clearly that an element of his case will be that the wife engaged in conduct of the kind referred to in the reported decision of Kowaliw and Kowaliw (1981) FLC 91- 092.

4. On 15 January 2014 the Court directed that the wife file an affidavit which set out the following information:

   2.That the Wife file an Affidavit 3 days prior to the next Court date setting out;

   (i)The nature of the charges brought against her by the DPP.

   (ii)The facts on which the DPP relied to bring the charges against the Wife.

   (iii)The day on which the Wife was first served with any documents by the DPP.

   (iv)The costs and fees/disbursements paid by the Wife to date in respect to the District Court proceedings to any legal representative and/or court expert.

   (v)The source of funds used by the Wife to meet the costs, fees and disbursements set out in (iv) above."

5. Relevantly for present purposes, the wife deposed in this affidavit:

   "6.According to my solicitors, I have thus far outlaid the sum of $107,745.00 in relation to my defence of the criminal law matter.  Direction 2(iv)

   7.I have sourced the funds from business income available to me through appropriate and legal means.

   8.My understanding is that the amount I have spent on my criminal law defence, will not adversely impact or effect [sic] the availability of any settlement amount or order made in this matter.  This is due to the fact that this amount is much less than the available equity in these proceedings and much less than my broadly anticipated share of proceeds once this matter is finalised."

6. Obviously the amount which the wife has expended on her criminal proceedings would now exceed considerably the specified figure of $107,745.00 as at 25 February 2014.  These proceedings subsequently continued before the Court of Criminal Appeal and the High Court of Australia.  Further, the wife's evidence as to the source of the funds which she used to fund her criminal litigation was scant and of little assistance to the husband and the Court.

Submissions

1. The solicitor for the wife summarised her position in relation to orders 2(c) and 2(d) as follows:

   The objections to the provision of the material sought fall into three broad categories.

   a)The Orders must fail as there are too many difficulties involved in the interpretation;  they are problematic and are incapable of being enforced.

   b)The wife asserts such material is subject to statutory and common law privilege

   c)the order should not be made for policy considerations and the context of offending other legislative instruments, protocols and policies.

2. The wife's submissions then proceeded to a passage headed "Interpretative Difficulties".  Here the wife complained that Orders 2(c) and 2(d) "lack … necessary preciseness and clarity …".  The wife complained further that "the husband has failed to identify the party who has taken criminal proceedings against [the wife]".  She then contended that the proposed order "makes assumptions as to the existence of invoices, fees, notes receipts and itemised bills of costs".  The wife then contended that the proposed order appears to be directed at a third party, namely her lawyers, who have not been joined to the proceedings.

3. I do not accept the submission of the wife to the effect that paragraphs 2(c) and 2(d) are drawn too broadly to properly constitute orders of the Court.  In her affidavit of 25 February 2014 the wife deposed to the precise charges which were brought against her and annexed a copy of the Statement of Facts which was relied upon by the Director of Public Prosecutions.  On various occasions since 2013, the wife's solicitor has informed the Court and the husband, on the record, of the progress of her criminal proceedings.  Further, copies of the judgments of the District Court, the Court of Criminal Appeal and the High Court are available as a matter of public record and were relied upon by the husband for the purposes of the present application.  Consequently, I take the view that the proposed orders could leave the wife in no doubt as to which proceedings and documents were sought by the husband.

4. I reject the submission that the proposed orders are fatally flawed by the husband's failure to identify the party who has "taken criminal proceedings against [the wife]".  As noted above, the wife identified the charges in her affidavit of 25 February 2014 and the three judgments are a matter of public record.

5. I reject the submission that the orders should not stand because there is an inherent assumption as to the existence of the invoices and other named documents and/or that this material is in the possession of an unjoined third party.  If no such documents exist, it is self-evident that the wife would be unable to produce any material in compliance with the orders.  I accept the submission on behalf of the husband, to the effect that the wife is in a position to authorise her lawyers to produce documents in compliance with these orders.

6. The wife's submissions then proceeded to a topic headed "The wife asserts such material is subject to statutory and common law privilege".  I will not analyse these submissions in detail, as I am satisfied that any such difficulties could properly be met by the husband's suggestion of a redaction of the relevant documents.

7. Finally, the wife's submissions contained a passage headed "The order should not be made for policy considerations."  This part of the wife's submissions goes so far as to suggest that the Law Society and the Bar Association may wish to address this matter "as its consequences could be far reaching".  Again, the husband's proposal for a redaction of the nominated documents would seem to address adequately any of these alleged difficulties.

Conclusion

1. I will accept the suggestion made on behalf of the husband that the potential difficulties identified in the wife's submissions can properly and adequately be addressed in the following manner:

   'A notation may be made on the orders as follows:  "By way of notation, that narrative in respect of any privileged legal advice on the documents produced pursuant to order 2(c) and 2(d) may be redacted."'

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 19 February 2018.

Associate: 

Date:  19 February 2018