Blue and Blue

[2007] FamCA 1444

FAMILY COURT OF AUSTRALIA

BLUE  & BLUE [2007] FamCA 1444

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal – Disclosure of information

Family Law Act 1975 (Cth)

APPLICANT: Ms Blue

RESPONDENT: Mr Blue

FILE NUMBER: BRF 3188 of 2005

DATE DELIVERED: 14 December 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Justice Carmody

HEARING DATE: 18 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North of Counsel leading Ms Brasch of Counsel

SOLICITOR FOR THE APPLICANT: Mr R. Hirst
Hirst and Company

SOLICITOR FOR THE RESPONDENT: Mr G. Wilson
Hopgood Ganim

Orders

1. That paragraphs (2) and (3) of the Application in a Case filed on 27^th August 2007 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Blue & Blue is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3188 of 2005

MS BLUE  

Applicant

And

MR BLUE  

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is the adjourned hearing of two Form 2’s filed by the Wife on 27^th August 2007 and 30^th October 2007 and the return date of the Husband’s further amended Form 2A filed 16^th November 2007.

2. The interim applications are made in the context of a complex property settlement case involving a pool in the order of $5 million and a network of corporate and trust structures involved in property development.

3. The first application seeks orders in five separate categories including costs.  Of those only the second and third are left to be decided.  They relate to disclosure of a litigation funding application and the issue of a mandatory injunction.

4. All other applications and cross-applications have been resolved by agreement.

The litigation funding privilege question

1. There are two related controversies for adjudication under this heading. The first question is whether or not the husband’s loan application for funding of his legal fees and charges in connection with this litigation is a document protected against disclosure by client-legal privilege. The protection, if any, belongs to and can only be surrendered by him.   The next issue is whether any privileged contents of the document have been waived. 

2. Senior Counsel for the wife, Mr North SC, argues that the inclusion in a third party document of information that might otherwise attract privilege does not make that document itself a privileged communication but may have the practical effect, whether intended or not, of removing the protection of the privilege from any confidential client lawyer communication it contains under the doctrine of implied waiver.

3. However, he quite rightly concedes that there was no inconsistency of conduct between the disclosure and the purpose of the privilege. He acknowledges also that there would be more unfairness to the husband in an adverse waiver finding than there would be to the wife if the privilege was allowed to stand. Thus, waiver does not really lie at the heart of the problem. 

4. The husband’s contention is that albeit a third party document…