Condie and Quirke

[2012] FamCA 882

FAMILY COURT OF AUSTRALIA

CONDIE & QUIRKE [2012] FamCA 882

FAMILY LAW – PRACTICE AND PROCEDURE – subpoena – where the wife has issued a subpoena to the husband’s former legal representatives seeking the production of a file relating to Wills – where the husband objects on the grounds of legal professional privilege – where the wife says that the husband has waived legal professional privilege – where legal professional privilege has been established by the husband – where the wife has not established on the balance of probabilities that privilege has been waived – where the Court may be able to reconsider the question of waiver once further evidence is heard by the Court – objection upheld.

Evidence Act 1995 (Cth) s 118
Family Law Act 1975 (Cth)

Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674
Mann v Carnell (1999) 201 CLR 1
Northern Territory of Australia v GPAO (1999) FLC 92-838
Strahan & Strahan [2012] FamCA 214

APPLICANT: Mr Condie

RESPONDENT: Ms Quirke

FILE NUMBER: ADC 388 of 2011

DATE DELIVERED: 24 October 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGinn

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy Lawyers

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Diane Myers Pty Ltd

Orders

1. The documents produced pursuant to subpoena to Mr G, General Manager, B Solicitors to remain with the Court but not to be inspected or copied without further order of the Court.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 388 of 2011

Mr Condie

Applicant

And

Ms Quirke

Respondent

REASONS FOR JUDGMENT

introduction

1. The solicitors for the wife (Ms Quirke) issued a subpoena to the General Manager of B Solicitors seeking production of documents in relation to the husband’s (Mr Condie’s) files being any Wills and Estates files concerning his Last Will and Testament made on 5 February 2002, “including all file notes, memoranda and letters” together with any later Wills and Estates files up to December 2010 “including all file notes, memoranda and letters and including a copy of a record of any instructions given by [Mr Condie] regarding making a new Will”.

2. The husband objected to the production of the documents on the basis that they were the subject of “legal professional privilege”. 

3. At the hearing before me on 1 August 2012, Mr Jordan appeared for the wife and Mr McGinn appeared for the husband.  The issue was the application of legal professional privilege.

Background

1. The proceedings between the husband and wife relate to the application brought by the de facto husband seeking property settlement orders.

2. The wife was granted leave to issue a subpoena to B Solicitors.  The subpoena…