C21 Pty Ltd (Trustee) v Hou (No 2)
[2022] FedCFamC2G 550
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
C21 Pty Ltd (Trustee) v Hou (No 2) [2022] FedCFamC2G 550
File number(s): SYG 2055 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 8 July 2022 Catchwords: PRACTICE AND PROCEDURE – Evidence – privilege – whether redacted portions of document subject to legal professional privilege – some but not all portions subject to legal professional privilege. Cases cited: Trade Practices Commission v Sterling [1979] FCA 33 Division: General Number of paragraphs: 6 Date of hearing: 23 June 2022 Place: Sydney Counsel for the Applicant: Mr C McMeniman Solicitor for the Applicant: Gilbert + Tobin Solicitor for the Respondents: Mr M Szary of MGA Lawyers, by telephone ORDERS
SYG 2055 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: C21 PTY LTD ATF THE RAMADAN FAMILY TRUST
Applicant
AND: KATE HOU
First Respondent
HIBI DESIGN PTY LTD
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.Among the redacted communications recorded in the document identified as “item 9366254” the following communications are subject to legal professional privilege:
(a)The communications of 21 October 2021 from 5:34:48 am to 5:43:45 am.
(b)The communications of 3 November 2021 from 6:03:38 am to 6:09:32 am.
(c)The communications of 12 November 2021 from 4:06:19 am to 4:10:55 am.
(d)The communication of 12 November 2021 at 9:15:06 pm.
(e)The communications of 23 November 2021 from 5:52:51 am to 6:04:23 am.
(f)The communications of 25 November 2021 from 12:08:14 am to 12:09:21 am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
The parties are in dispute about a number of redactions the respondents have made to a document they produced to the applicant. The document is identified as “item 9366254” (the Document), and it consists of a string of exchanges between the first respondent, Ms Hou, and a Mr Green made by use of the WhatsApp application.
I have been provided with the redacted and the unredacted versions of the Document; and the parties have consented to my viewing the unredacted version of the Document to determine whether the redacted portions of the Document attract legal professional privilege.
The dispute is to be determined by the application of the common law, rather than by the application of Part 10 of the Evidence Act 1995 (Cth). I will take the following passage from the current edition of Cross on Evidence as a correct statement of the common law rule relating to legal professional privilege (footnotes omitted):[1]
In civil and criminal cases, confidential communications passing between a client and a legal adviser need not be given in evidence or otherwise disclosed by the client and, without the client's consent, may not be given in evidence or otherwise disclosed by the legal adviser if made either (1) to enable the client to obtain, or the adviser to give, legal advice, or assistance, or (2) with reference to litigation that is actually taking place or was in the contemplation of the client. . . . There is an unresolved controversy as to whether there is a single privilege with two applications, or two privileges with different provinces and functions. . . . The relevant time for assessing whether the conditions antecedent to a valid claim of privilege are satisfied is the time when the communication was made. . . .
Documents prepared by or communications passing between the legal adviser or client and third parties need not be given in evidence or otherwise disclosed by the client and, without the consent of the client, may not be given in evidence or otherwise disclosed by the legal adviser if they come within (2) above.
[1] Cross on Evidence, Lexis Nexis, online addition, accessed 29 June 2022, at [25210]
All of the communications recorded in the Document are between Ms Hou, a person who is receiving legal professional services on behalf of herself and the second respondent (HIBI) in connection with this proceeding, and Mr Green, who is not a lawyer. In other words, the communications in question are between the “client” (Ms Hou and HIBI) and a third person, Mr Green. Legal professional privilege may attach to such communications in the circumstances Lockhart J identified in Trade Practices Commission v Sterling (Sterling categories), these being:[2]
(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. . . . (b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. . . (c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. . . . (d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. . . . . (e) Communications and documents passing between the party’s solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. . . . (f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. . . . (g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent. . . .
[2] Trade Practices Commission v Sterling [1979] FCA 33, at [4]
I make the following findings:
(a)The redacted communications of 21 October 2021 from 5:34:48 am to 5:43:45 am fall within Sterling category (f) and, therefore, are privileged.
(b)The redacted communications of 3 November 2021 from 6:03:38 am to 6:09:32 am fall within Sterling category (f) and, therefore, are privileged.
(c)The redacted communications of 12 November 2021 from 4:06:19 am to 4:10:55 am fall within Sterling category (f) and, therefore, are privileged.
(d)The communication of 12 November 2021 at 9:15:06 pm attaches the text of what appears to be a proposed letter to the Court by a potential witness. I find this communication falls within Sterling category (b) and, therefore, is privileged.
(e)The redacted communications of 23 November 2021 from 5:52:51 am to 6:17:55 am refer to a report a lawyer had given about a particular development, but also communications that do not refer to the report from the lawyer, I am satisfied that the communications from 5:52:51 am to 6:04:23 am are communications that fall within Sterling category (d) and, therefore, are privileged. I am not satisfied that the communications from 6:04:34 am to 6:17:55 am are privileged.
(f)Of the redacted communications from 12:08:14 am on 25 November 2021 to 4:46:14 am on 26 November 2021, only the communications that occurred on 25 November 2021 from 12:08:14 am to 12:09:21 am are privileged; and they are privileged because they fall within Sterling category (d). The remaining communications are not privileged.
I will make an order to give effect to my findings.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 8 July 2022
0
0
0