Condie and Quirke
[2012] FamCA 882
•24 October 2012
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 |
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
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
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”.
The husband objected to the production of the documents on the basis that they were the subject of “legal professional privilege”.
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
The proceedings between the husband and wife relate to the application brought by the de facto husband seeking property settlement orders.
The wife was granted leave to issue a subpoena to B Solicitors. The subpoena was served. The husband was given notice of the subpoena and has filed a Notice of Objection. The wife seeks permission to inspect and copy the documents produced to the Court in answer to the subpoena by B Solicitors or in the alternative, leave to inspect the documents.
The husband says that the parties commenced cohabitation in November 2008. The wife says cohabitation commenced in 1999.
The length of the relationship between the parties and the time that it commenced is clearly a relevant factor to be determined in the final property proceedings between the parties.
The Law
In the summary of argument on behalf of the husband, objection was made to the subpoena:
…on the basis that it:
ii.Seeks the production of documents that are the subject of legal professional privilege pursuant to section 118 of the Evidence Act Commonwealth” (Item 1.(i) ii.)
In the written submissions on behalf of the wife at paragraphs 14 it was asserted:
The husband voluntarily waived legal professional privilege pursuant to section 122 of the Evidence Act 1995 (Cth) by allowing the wife to be present when he gave his instructions to [] and by discussing the draft Will with her.
During the oral submissions counsel also referred to the provisions of the Evidence Act 1995 (Cth).
Provisions of the Evidence Act 1995 (Cth) relate to client legal privilege are set out in Part 3.10. The relevant sections which were referred to by counsel included, section 118:-
Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
As is clear from the actual wording of section 118 this section relates to evidence being adduced, not to the production or inspection of documents.
Similarly, section 119 relates to evidence not being adduced if the dominant purpose was the client being provided with professional legal services. The provisions which follow relate to the loss of the client legal privilege which would allow the evidence to be adduced in certain circumstances.
The provisions of the Evidence Act 1995 (Cth) therefore do not relate to the right to inspect documents produced pursuant to a subpoena. The common law rules therefore apply. (see Strahan & Strahan [2012] FamCA 214, Mann v Carnell (1999) 201 CLR 1 at 13 and Northern Territory of Australia v GPAO (1999) FLC 92-838).
Part 15.3 of the Family Law Rules 2004 refers to subpoenas but does not provide any assistance in relation to objections on the grounds of legal professional privilege.
The High Court decision of Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49 confirms that the correct test for ascertaining the existence of legal professional privilege was the dominant purpose test. The common law doctrine of legal professional privilege exists to protect from disclosure to the other party any document which sets out particulars of a communication between a client and their legal adviser if the communications were made for the purpose of legal advice or for the purpose of obtaining information for use in existing or anticipated litigation.
In Grant v Downs (1976) 135 CLR 674 the majority said at 688 to 689:
It is well accepted that the court in allowing production and inspection of documents exercises a judicial discretion. In so doing it needs to scrutinize with care claims of privilege made on the ground now under consideration. It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.
In the decision of Mann v Carnell (Supra) the majority of the High Court (Gleeson CJ, Gaudron, Gummow and Callinan JJ) said at [28]:
At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.
The High Court on [29]:
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect…. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
Discussion and findings
The wife asserts that she was present “sometime in 2008” when the husband gave instructions to B Solicitors to make a new Will. She asserts that the husband showed her a draft Will and discussed the terms of it with her.
The husband admits that he provided “confidential communications” to B Solicitors in relation to the preparation of a draft Will which was prepared based upon those instructions. It is maintained on behalf of the husband that all of the documents which the wife seeks to be produced by the husband’s former solicitors, who were instructed in relation to his Wills and draft Wills, are documents which are covered by the definition of the privileged communications between the client and lawyer.
The husband does not accept that the wife was present during the instructions given to the lawyer in relation to the Will, nor that he provided her with copies of the draft Will.
The Court is satisfied that the documents which the wife seeks to inspect are documents which were produced for the dominant purpose of providing the husband with legal advice about making a Will (being communications between the husband and his legal advisers and notes and documents created as a result of the communication between the husband and his legal advisers).
Whilst satisfied that the information contained in the documents may well be relevant to the issues to be determined in these proceedings, namely the dates or periods during which the husband and wife were in a de facto relationship, the mere fact that the document may be relevant or relate to the issues to be determined does not overcome the difficulty of legal professional privilege.
The facts upon which the wife asserts that the husband has waived his privilege by allowing her to be present during instructions to his lawyer and showing a copy of the draft Will, are denied by the husband.
The conflicting assertions of the parties do not enable the Court to make a finding that the husband has waived his legal professional privilege.
After the hearing of evidence if the facts are determined then further consideration of the question of the claim of waiver may be considered.
Conclusion
The husband has established that the documents mentioned in the subpoena to B Solicitors are covered by his claim for legal professional privilege. At this stage it has not been established on the necessary balance of probabilities that the husband has waived that privilege.
For the above reasons therefore the wife has not established a basis upon which she should be granted leave to inspect or copy the documents produced pursuant to the subpoena. As set out above it may be that when further evidence is heard the Court may be in a position to reconsider the question of waiver. It is therefore appropriate for the documents which have been produced by B Solicitors to remain at the Court, but steps should be taken to ensure that such documents are not inspected or copied without further order of the Court.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 24 October 2012.
Associate:
Date: 24 October 2012
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