Conlan v Walker
[2011] FCA 347
•12 April 2011
FEDERAL COURT OF AUSTRALIA
Conlan v Walker [2011] FCA 347
Citation: Conlan v Walker [2011] FCA 347 Parties: MARK ANTHONY CONLAN AS TRUSTEE OF THE BANKRUPT ESTATE OF DUNCAN ALLISTER WALKER and LINCOLN AGENCIES (WA) PTY LTD ACN 071 035 160 v BEVERLY CLARE WALKER AS TRUSTEE OF THE DUNCAN WALKER FAMILY TRUST; BEVERLY CLARE WALKER AS TRUSTEE OF THE DUNCAN WALKER FAMILY TRUST; MARK ANTHONY CONLAN File number: WAD 67 of 2010 Judge: BARKER J Date of judgment: 12 April 2011 Catchwords: EVIDENCE – Application to restrain use of documents - whether documents should be characterised as a without prejudice communication – whether documents are subject to legal professional privilege generally or under the Propend rule – whether without prejudice privilege inhering in certain documents has been waived – whether documents fall under exception to the rule in Propend Legislation: Bankruptcy Act 1966 (Cth) s 30, ss 77, 120(1)
Federal Court of Australia Act 1976 (Cth) s 37MCases cited: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501
Dalrymple Park Pty Ltd v Tabe & Lees Pty Ltd (unreported, Supreme Court of Tasmania, 5 December 1997)
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2010] UKSC 44; (2010) 3 WLR 1424
Yokogawa Australia Pty Ltd v Alstom Power Ltd [2009] SASC 377; (2009) 262 ALR 738Date of hearing: 28 March 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 62 Counsel for the Applicants/Cross Respondent: Mr R J Price Solicitor for the Applicants/Cross Respondent: Brickhills Counsel for the Respondent/Cross-Claimant: Mr D H Solomon Solicitor for the Respondent/Cross-Claimant: Solomon Brothers
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 67 of 2010
BETWEEN: MARK ANTHONY CONLAN AS TRUSTEE OF THE BANKRUPT ESTATE OF DUNCAN ALLISTER WALKER
First ApplicantLINCOLN AGENCIES (WA) PTY LTD ACN 071 035 160
Second ApplicantAND: BEVERLY CLARE WALKER AS TRUSTEE OF THE DUNCAN WALKER FAMILY TRUST
RespondentBEVERLY CLARE WALKER AS TRUSTEE OF THE DUNCAN WALKER FAMILY TRUST
Cross-ClaimantAND: MARK ANTHONY CONLAN
Cross-Respondent
JUDGE:
BARKER J
DATE OF ORDER:
12 APRIL 2011
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The documents described in paragraphs (a), (b), (c), (d), (e), (h) and (j) of the Schedule to the respondent’s amended interim application filed 17 March 2011 and currently in the possession of the first applicant are the subject of legal professional privilege and may not be used in these proceedings and ought be returned to Duncan Allister Walker as soon as practicable.
2.The applicants pay the respondent’s costs of the interim application to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 67 of 2010
BETWEEN: MARK ANTHONY CONLAN AS TRUSTEE OF THE BANKRUPT ESTATE OF DUNCAN ALLISTER WALKER
First ApplicantLINCOLN AGENCIES (WA) PTY LTD ACN 071 035 160
Second ApplicantAND: BEVERLY CLARE WALKER AS TRUSTEE OF THE DUNCAN WALKER FAMILY TRUST
RespondentBEVERLY CLARE WALKER AS TRUSTEE OF THE DUNCAN WALKER FAMILY TRUST
Cross-ClaimantAND: MARK ANTHONY CONLAN
Cross-Respondent
JUDGE:
BARKER J
DATE:
12 APRIL 2011
PLACE:
PERTH
REASONS FOR JUDGMENT
APPLICATION TO RESTRAIN USE OF DOCUMENTS
By amended interim application filed 17 March 2011, the respondent/cross‑claimant seeks to restrain the applicants and cross‑respondent from using or relying upon certain documents referred to in the schedule to that application for any purpose connected with this proceeding.
ISSUES ARISING
Two main issues arise on this application:
(1)Whether each of the documents should be characterised, on the one hand, as a without prejudice communication, thus attracting a without prejudice privilege in the hands of Duncan Allister Walker or his solicitors at material times, or, on the other hand, are subject to legal professional privilege generally or under the Propend rule.
(2)If any document attracts privilege, whether the privilege has been waived.
HOW THE ISSUES ARISE
The circumstances in which the issues arise are a little unusual. The applicant as the trustee in bankruptcy of the estate of Mr Walker currently holds the relevant documents, having obtained them from the former solicitors of Mr Walker following the commencement of this proceeding. Just how this came about and the legal context in which the issues now arise should be briefly explained.
At material times, Beverley Clare Walker and Mr Walker were married, but separated, and were registered as proprietors, as joint tenants, of the fee simple in 20 Wendouree Road, Wilson (the Wilson property).
On 12 September 2005, the Family Court of Western Australia made an order by consent of the parties in the terms of a minute of consent orders dated 28 June 2005 (order number PTW6239) which was signed by Mrs Walker as “wife” and Mr Walker as “husband”. Paragraph [4] of the consent orders provided:
4.The wife shall transfer all the right title and interest in the following to the husband or his nominee:
(a)The right title and interest in the property at 20 Wendouree Road, Wilson.
Subsequent to the making of the Family Court consent orders, Mr Walker and Lincoln Agencies (WA) Pty Ltd, the second applicant, were registered as proprietors, as tenants in common in equal shares, of the Wilson property. The transfer that enabled this registration was from Mr Walker and Mrs Walker, as joint tenants, to Mr Walker and the second applicant, as tenants in common in equal shares. The consideration stated on the transfer was “Pursuant to Family Court Order No PTW6239 dated 28th June 2005”. At the time the transfer was signed, Mr Walker was an undischarged bankrupt.
In this proceeding, the first applicant, Mark Anthony Conlon as trustee of the bankrupt estate of Mr Walker, and the second applicant seek to set aside the transfer in respect of the Wilson property, pursuant to the Bankruptcy Act 1966 (Cth) and to this end seek the following principal relief:
(1)a declaration that between 12 September 2005 to 12 May 2006, and by reason of the Family Court consent order, Mr Walker held an equitable interest in the Wilson property arising from and out of the interest that Mrs Walker held in the property prior to the making of the consent orders;
(2)an order pursuant to s 30 of the Bankruptcy Act that the transfer to the second applicant on 12 May 2006 of a half interest in common of the Wilson property was void against the first applicant, pursuant to s 120(1) of the Bankruptcy Act.
By notice stating grounds of opposition to the application, filed 3 June 2010, Mrs Walker, as trustee for the Duncan Walker Family Trust, contends that the order of the Family Court was made by consent, pursuant to an agreement between Mr Walker and herself that her half interest in the Wilson property be transferred by her into a discretionary family trust for the benefit of their two children and not to Duncan Walker in his personal capacity and, as a result, the Family Court order should be construed as requiring Mrs Walker to transfer to her half interest in the Wilson property to the trustee of a discretionary family trust benefitting the children once the identity of the trustee became known. Thus, the respondent contends that the second applicant obtained its half interest in the Wilson property from Mrs Walker, not from Mr Walker as alleged by the applicants.
At material times, Mrs Walker was represented by solicitors in relation to her family law dispute with Mr Walker. The minute of consent orders was signed on 28 June 2005, at the offices of Gibson & Gibson, the solicitors then acting for Mrs Walker, by both Mrs and Mr Walker.
Mr Walker, at the time the minute of consent orders was signed, had been self‑represented in relation to the family law dispute for some period, although he had previously been advised and represented in relation to the dispute by solicitors, Mony De Kerloy, from about March 2005 until October or November 2005.
Following the commencement of this proceeding, the first applicant wrote to both Gibson & Gibson, as Mrs Walker’s former solicitors, and Mony De Kerloy, as Mr Walker’s former solicitors, and requested each to allow him the opportunity, as trustee in bankruptcy under s 77 of the Bankruptcy Act, to inspect and if necessary take copies of the documents on file held by them in relation to the family law dispute concerning their former client. In response to this request, Gibson & Gibson referred the request and the relevant papers they held to the solicitors acting for Mrs Walker in this proceeding, which solicitors thereafter objected to production on the grounds of privilege. However, Mony De Kerloy, apparently without any reference to their former client allowed the first applicant to inspect their file and provided copies of requested documents to the first applicant.
The respondent now claims that the documents furnished by Mr Walker’s former solicitors are privileged and that the applicants are unable to use the documents in this proceeding. The applicants have acknowledged that a number of documents are subject to legal professional privilege, which has not been waived by Mr Walker, but say other documents are the subject of a without prejudice privilege which has been waived by conduct, or are documents covered by an exception to the rule in Propend and are not privileged.
PRELIMINARY ISSUE
Before going to the primary issues, the applicants raise what might be called a preliminary issue concerning the claims for privilege made by the respondent. They point out, fairly, that if there is any privilege in the documents it belongs to Mr Walker, not Mrs Walker or the respondent. About that there is no doubt and the respondents do not submit otherwise. In these circumstances, the applicants suggest that it is not open, without a separate, formal proceeding or motion by Mr Walker claiming privilege, for the Court to make the order now sought on the respondent’s application.
In my view, the submission to this effect made on behalf of the applicants fails to recognise that Mr Walker has in fact made a claim for privilege by making his affidavit, filed 25 January 2011, as well as his subsequent affidavit, filed 18 March 2011. Prior to that it was plain on the materials filed on behalf of the respondent and submissions made by counsel on behalf of the respondent that Mr Walker had also asserted privilege in the documents directly to the respondent and her solicitors and through them to the Court and the applicants.
In my view, in the circumstances as they have developed in this proceeding, it is appropriate for the Court properly to take cognisance of the claim that Mr Walker makes for privilege in the documents. The substance of that claim must be recognised. Whether as a matter of form Mr Walker should have made a claim to privilege in a separate proceeding, or by his own motion in the Court, is not presently material. The Court is apprised of the issue and should deal with it in the interest of justice and efficiency, as required by s 37M(1) and (2)(a) and (b) of the Federal Court of Australia Act 1976 (Cth).
PROPEND RULE
Before turning to each of the documents as described in the schedule to the amended interim application that remain in dispute between the parties, in order to determine whether each is properly to be described as a without prejudice communication that may attract a without prejudice privilege, or on the other hand is a copy document provided by Mr Walker to Mr Walker’s former solicitors for the purpose of obtaining legal advice or in connection with family law litigation, which attracts legal professional privilege, I should address the Propend rule and the question whether there is any exception to it.
In Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 (Propend), the majority of the High Court (Dawson and Toohey JJ dissenting) held that legal professional privilege attached to a copy document that was provided to a lawyer if the copy was made solely for the purpose of obtaining legal advice or solely for use in legal proceedings, even where the original document was not privileged.
Brennan CJ, at 508, said that the test for a claimed privilege in these circumstances is anchored to the purpose for which the document was brought into existence; the use to which it is put after it is brought into existence being immaterial. Accordingly, on a strictly logical application of the test, if a copy is made solely for the purpose of providing it to a legal advisor in order to obtain legal advice or for use in connection with apprehended litigation, the copy would be privileged. Other members of the majority, for example McHugh J at 558, took a similar approach.
Brennan CJ, at 512, suggested, however, a qualification to this general rule, by reference to the provisions of the Commonwealth Crimes Act that permit the execution of a search warrant and seizure of documents. His Honour stated that where privileged copies of original documents are seized under a search warrant, some qualification of the privilege is required to ensure that the person executing the warrant should have access to the contents of an unprivileged original to the same extent at least as a party to litigation can obtain access to the contents of an unprivileged original against a party who has, or has had, the unprivileged original in his or her possession or power. Brennan CJ stated the qualification in this way:
if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. The loss of privilege can be avoided by the production of a copy of the original (which might be produced by copying the privileged copy) the accuracy of which is verified by a person having knowledge of the contents of the original. So long as a copy of the unprivileged original (with verification if necessary) or other secondary evidence of its contents is available to be tendered to prove the contents of the original, the privilege attaching to any copy of the original can and should be maintained. Otherwise I would hold the privilege of the privileged copy to be lost.
In my view, it is clear that the qualification suggested by Brennan CJ was only intended by his Honour to have application in the case of documents seized under a search warrant, and not in general litigation or circumstances such as those currently before the Court in this case. In Dalrymple Park Pty Ltd v Tabe & Lees Pty Ltd (unreported, Supreme Court of Tasmania, 5 December 1997), Crawford J appears to have adopted a similar view to that which I have first expressed. I note that no other member of the Court in Propend adopted the qualification supported by Brennan CJ to the general rule and it does not appear to have been applied in any reported case. In all of these circumstances the existence of the qualification described by Brennan CJ may be doubted. In any event, it has no application to the issues now before this Court.
FIRST ISSUE: WHETHER THE DOCUMENTS ATTRACT PRIVILEGE
I turn now to the documents that remain in dispute as listed and described in the schedule to the respondent’s amended interim application.
(a) Email from Duncan Walker to Beverley Walker c/- Tony Loades, dated 11 May 2004.
The document in question is produced as attachment DAW2 to the affidavit of Mr Walker filed 25 January 2011. It is appropriate to regard this and the documents in question in a case such as the present in order properly to characterise them. Attachment DAW2 appears on its face to be a copy of an email from Mr Walker to Jeremy Tolcon, a solicitor at Mony De Kerloy, dated 3 March 2005. It includes a copy of or forwarded an email from Mr Walker to Tony Loades with a request that he forward the communication to Mrs Walker as he did not have her email address. In his affidavit Mr Walker explains that Tony Loades is Mrs Walker’s father. He says that prior to receiving a copy of DAW2 attached to a letter from Brickhills, dated 16 November 2010, to Solomon Brothers, he had not had a copy of that email in his possession since at least about January 2008. He further says that he cannot recall if he printed and kept a paper copy of the emails which are DAW2 and DAW3 at the time they were sent, but if he did they would have been stored with the rest of his records at the Wilson property. He now no longer knows what happened to the records he kept and explains that he had relocated to India for a period. Mr Walker says in his affidavit that he provided a copy of DAW2 and DAW3 to Mony De Kerloy at the time he initially instructed them to represent him. The copy of each provided to the first applicant by Mony De Kerloy is, he says, a copy of those emails attached to the email sent by him for the purpose of giving instructions to Mony De Kerloy in his family law dispute with his wife. He refers to the email to Jeremy Tolcon which confirms that the copy of the email is a copy of the emails that he forwarded.
I find that the document in DAW2 is a copy of an email initially sent by Mr Walker to Mrs Walker, via her father, on or about the date shown on the copy, namely 11 May 2004. I find also that the copy of DAW2 was provided by Mr Walker to Mony De Kerloy solicitors for the purpose of enabling Mony De Kerloy to provide advice to Mr Walker in the family law dispute with his wife, which at that stage was the subject of legal proceedings in the Family Court.
I find, therefore, that the document DAW2 is not itself a without prejudice communication. Rather, it is covered by the rule in Propend, and is subject to legal professional privilege and is not the subject to an exception to Propend.
(b) Email from Duncan Walker to Doray Solicitors dated 27 October 2004.
This document is attachment DAW3 to the affidavit of Mr Walker, filed 25 January 2011. This document falls into exactly the same category as DAW2. As explained by Mr Walker in his affidavit, he provided Mony De Kerloy with a copy of his earlier email to Doray Solicitors, dated 27 October 2004, on or about 3 March 2005. He did this for the purpose of obtaining legal advice from Mony De Kerloy.
I rule that document DAW3 is not a without prejudice communication between Mr Walker and Mrs Walker, through her then solicitors. Rather, it is covered by the rule in Propend, is subject to legal professional privilege and is not the subject of any exception to Propend.
(c)Letter from Duncan Walker to Beverley Walker dated 24 February 2005.
This document is attachment DAW4 to Mr Walker’s affidavit filed 25 January 2011. It is a typed letter comprising seven pages. On the seventh page, the letter does not bear the signature of Mr Walker, but merely his typed name “Duncan Walker”. It seems, in its original form, it was given to Mrs Walker. In his affidavit Mr Walker says that he provided a copy of DAW4 to Mony De Kerloy at the time he initially instructed them to represent him and that is the document that the first applicant obtained from Mony De Kerloy – a copy of the copy letter.
Consistent with my ruling in relation to documents DAW2 and DAW3, I rule that document DAW4 is subject to legal professional privilege under the rule in Propend.
(d) Handwritten file note of a case management conference in the Family Court proceeding PTW6329 of 2004 dated 2 March 2005.
This document is attachment DAW5 to the affidavit of Mr Walker filed 25 January 2011. In his affidavit Mr Walker says that the notes were made by Mr Mark de Kerloy from Mony De Kerloy who attended the case evaluation conference. He was not provided with a copy of the notes. Self evidently these notes do not constitute a without prejudice communication, but merely a solicitor’s notes of what was discussed between the parties at a case assessment conference in the Family Court of Western Australia. It may be a note that evidences such communications, but it is not itself a without prejudice communication.
I find, therefore, the notes are not privileged as a without prejudice communication but are subject to legal professional privilege.
(e) Handwritten file note of a case management conference in the Family Court proceeding PTW6329 of 2004, dated 9 March 2005.
This document is attachment DAW6 to Mr Walker’s affidavit filed 25 January 2011. This document falls into exactly the same category as DAW5.
I find, therefore, that document DAW6 is not privileged as a without prejudice communication but is subject to legal professional privilege.
(f)Email from Duncan Walker to Beverley Walker (undated) but bearing facsimile header dated 22 March 2005.
This document is attachment DAW7 to Mr Walker’s affidavit, filed 25 January 2011. In his affidavit, Mr Walker says that although Mony De Kerloy were representing him at the time, and Mrs Walker was represented by Doray Solicitors, he wrote and directly sent to Mrs Walker the email which is disclosed in the DAW7. Mr Walker states that attachment DAW9 to his affidavit explains how the copy of the email that he sent to his wife in early 2005 came into the hand of his former solicitors, Mony De Kerloy. DAW9 is a copy of a facsimile transmission from Doray Solicitors to Mony De Kerloy dated 23 March 2005. Paragraph [17] of that facsimile mentions a copy of an email that Mr Walker had sent to Mrs Walker and attached a copy of it to that facsimile. The attachment DAW7 in fact bears facsimile transmission details that disclose it was sent by Doray Solicitors on 22 March 2005 at about the same time that DAW9 was sent by facsimile.
In my view, despite this explanation and my acceptance that DAW7 is a copy of a communication initially from Mr Walker to Mrs Walker, document DAW7 does not constitute a document communicated by Mr Walker to his then solicitors for the purpose of obtaining legal advice. It is simply a copy of a communication that constituted part of a settlement or negotiation communication. The actions of Mrs Walker’s solicitors in sending it to Mr Walker’s solicitors cannot have resulted in waiver of it, even if, as alleged by the solicitors, parts of it were actionable. On the basis that DAW7 is properly characterised as part of the without prejudice communications for the purposes of settlement, it attracts a without prejudice privilege. However, it is not covered by the rule in Propend. Whether it is otherwise the subject of waiver is considered below.
(g) Facsimile from Duncan Walker to Doray Solicitors dated 23 March 2005.
This document is attachment DAW8 to the affidavit of Mr Walker filed 25 January 2011. In his affidavit, Mr Walker says that although he had solicitors representing him at the time, he wrote and sent directly this facsimile to Doray Solicitors.
I find, therefore, that this letter is not covered by rule in Propend. It is, however, privileged as a without prejudice communication. Whether that privilege has been waived is considered below.
(h) Typewritten document titled “proposal” undated.
This document is attachment DAW11 to Mr Walker’s affidavit filed 18 March 2011. In his affidavit Mr Walker says that he drafted the document and table comprising DAW11 and did so before engaging Mony De Kerloy to represent him. He says he gave those documents directly to Beverley Walker. He notes the table bears a printed date of 25 November 2004. He says that his wife rejected the suggested method of settling distribution contained in them almost immediately and does not recall ever seeing the documents again. He says the documents were not referred to at the meeting that took place on 28 June 2005. He says that he did not make the handwritten notations that appear beneath the table.
The applicants say that there is nothing in the affidavit of Mr Walker to suggest that he gave the documents to his former solicitors for the purpose of obtaining legal advice. However, in the circumstances I am prepared to infer that is exactly what happened in the case of this document. The fact that document DAW11 was part of the Mony De Kerloy file and has handwriting on it apparently not belonging to Mr Walker leads me to infer that Mr Walker provided the document at some point to his former solicitors for the purpose of obtaining legal advice or representation in the Family Court litigation.
I find, therefore, that document DAW11 is not itself a without prejudice communication. Rather, it is covered by the Propend rule, is subject to legal professional privilege and is not the subject of any exception to Propend.
(j) Handwritten note beginning “1. Subdivide Tribute St to wife”, undated.
This document is attachment DAW12 to Mr Walker’s affidavit filed 18 March 2011. In his affidavit, Mr Walker says that he did not draft these handwritten notes, nor the notes at DAW13, which, I should note, to the casual eye, appear to be in the same hand. Based on their content Mr Walker believes they were drafted either by Mark de Kerloy, Jeremy Tolcon or Lara Anstie of Mony De Kerloy, as they appear to record instructions by him to his solicitors at the time he initially instructed them or shortly afterwards.
Accepting the probability of Mr Walker’s evidence, I find the document DAW12 is not a without prejudice communication. Rather, it is subject to legal professional privilege.
A question remains whether the without prejudice privilege I have found inheres in these documents, especially in documents (f) and (g), has been waived. I note for the record that the parties agreed that documents (i) and (k) in the Schedule are not in dispute.
THE QUESTION OF WAIVER
The primary issue is whether by the conduct of this proceeding the without prejudice privilege inhering in some documents has been waived.
Mr and Mrs Walker have each put on affidavit evidence in this proceeding in their personal capacities to the effect that the minute of consent orders was signed by them following negotiations between them and their solicitors on 28 June 2005 at the offices of Gibson & Gibson, Mrs Walker’s solicitors. Their evidence includes what was said and discussed at that meeting and includes evidence that the minute of consent orders was prepared and signed at the conclusion of the meeting and then subsequently became the subject of the consent orders made by the Family Court.
As noted above, the respondent contends the minute and Family Court consent orders are to be construed having regard to the background facts – or “factual matrix” – that includes the negotiations of 25 June 2005; in particular, an agreement that the interest of Mrs Walker was to be transferred to a discretionary trust for the benefit of the children of the marriage, as soon as the identity of the trustee was known.
The applicants do not accept there was any such agreement and contend that the Family Court order required Mrs Walker to transfer her interest to Mr Walker in his personal capacity or to an entity nominated by him, and that he nominated the second applicant to take a transfer of her interest in lieu of himself in his personal capacity.
In order to make out its construction case, the respondent expressly relies on evidence concerning the without prejudice negotiations on 28 June 2005. Counsel for the respondent concedes that in this regard both Mr and Mrs Walker have waived any without prejudice privilege that inhered in those discussions and negotiations. But counsel contends this conduct does not entitle the applicants to use the documents obtained from Mr Walker’s former solicitors, including those concerning earlier without prejudice communications between the parties. Counsel contends these earlier documents are in any event totally irrelevant to the task of construing the terms of the Family Court consent orders.
The applicants’ position in response may be shortly stated. They confirm they seek to challenge the evidence of Mr and Mrs Walker that any agreement to the effect described by them was made on 28 June 2005 or at all. To that end the applicants say they are entitled to test the evidence of Mrs Walker and Mr Walker to the contrary by reference to without prejudice negotiating documents held by Mr Walker’s former solicitors. The applicants, for example, say that any documents that disclose a course of negotiating prior to 28 June 2005 that is inconsistent with the agreement asserted by Mr and Mrs Walker, would go to disprove the claims of the respondent as to what was agreed on 28 June 2005.
The applicants say that it would be inconsistent for the respondent to contend that a particular agreement was reached between Mr and Mrs Walker on 28 June 2005, for particular reasons, and not allow the applicants to test that claim by reference to other without prejudice negotiating materials bearing on property settlement matters held by Mr Walker’s former solicitors.
Waiver of privilege may be found to be express or by implication, including from the conduct of a party who is entitled to the privilege. In this case, the applicants contend that the privilege in documents in the (f) and (g) category of without prejudice communications has been lost by conduct waiver.
The parties agree that waiver will occur where there is inconsistency between the conduct of the client and maintenance of the confidentiality: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1, Gleeson CJ, Gaudron, Gummow and Callinan JJ. In Mann v Carnell, at [29], their Honours explained that 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. There is, however, no overriding principle of fairness operating at large. This test and principle have been applied in other settings, for example, in Yokogawa Australia Pty Ltd v Alstom Power Ltd [2009] SASC 377; (2009) 262 ALR 738, [39], Duggan J (with whom Sulan J agreed).
The applicant says it would be relevantly inconsistent, informed by considerations of unfairness, for the respondent – and by extension Mr Walker in the circumstances of this case – to withhold any documents that constitute without prejudice negotiations about the property settlement, as to do so would be to exclude a proper examination of the full circumstances in which Mr and Mrs Walker ultimately signed the minute of consent orders for property settlement on 28 June 2005.
The respondent submits that its position is and will be at the final hearing of this case that there is an exception to the without prejudice rule that facts identified during without prejudice negotiations which lead to a settlement agreement of a dispute are admissible in evidence in order to ascertain the true construction of the agreement as part of the factual matrix or surrounding circumstances: Oceanbulk Shipping and Trading SA v TMT Asia Ltd [2010] UKSC 44; (2010) 3 WLR 1424 (Oceanbulk), [41] and [46], Lord Clarke of Stone‑cum-Ebony (with whom other members of the Court agreed). Counsel for the respondent submits that once it is understood that there is an exception to the without prejudice rule (assuming that this is also the law in Australia), then there is no further room for waiver to apply in this case. In any event counsel contends that without prejudice communications prior to 28 June 2005 are irrelevant to the proper construction of [4] of the Family Court consent orders.
In my view, the fact that the respondent is prepared to run its construction case by reference to the without prejudice negotiations engaged in by Mr and Mrs Walker on 28 June 2005, is a forensic or tactical issue that, in the end, does not depend on whether there is, under Australian law, an exception to the without prejudice privilege of the type described in Oceanbulk. Having chosen to run its case that way, with the plainly informed consent of Mrs Walker and Mr Walker, the simple question is whether waiver by conduct should be implied of the earlier without prejudice communication contained in documents (f) and (g).
The applicants do not accept that an agreement was ever reached as described by Mr and Mrs Walker in their affidavits. To disprove the respondent’s claims and to falsify the evidence proposed to be given by Mr and Mrs Walker, the applicants say it is imperative that they have the opportunity to test the evidence of Mr and Mrs Walker and to do that they are entitled to have regard to the documents that contain the without prejudice communications between Mr and Mrs Walker preceding 28 June 2005 about the property settlement.
It is impossible on the material before the Court simply to conclude that anything that passed between Mr and Mrs Walker and/or their solicitors prior to 28 June 2005 is irrelevant to what passed between them on that day. The content of earlier without prejudice communications are potentially probative in relation to the issue of just what agreement was made by Mr and Mrs Walker on 28 June 2005. Certainly the statements of evidence made by Mrs Walker and Mr Walker in their affidavit evidence cannot be considered final and irrefutable in relation to the issue. The applicants are entitled to contest their evidence in cross‑examination aided by relevant documents.
In my view, the moment Mr and Mrs Walker put in issue in this proceeding the agreement they allege they reached on 28 June 2005, the applicants became entitled to scrutinise that evidence, if they did not accept it, and for that purpose to have regard to the other without prejudice communications of the parties on property settlement, including those held by Mr Walker’s former solicitors.
I find, therefore, that the documents in (f) and (g) of the schedule which were the subject of without prejudice privilege are no longer the subject of a without prejudice privilege by reason of waiver by conduct.
There is no basis to find, however, that, by the conduct of putting in issue the without prejudice discussions of 28 June 2005, any other privilege, be it general legal professional privilege or privilege under the Propend rule, has been waived in the documents in question. There is no relevant inconsistency between the conduct of the Walkers in allowing the respondent to run its constructional case in the manner described, and the maintenance of the primary legal professional privilege or Propend privilege they individually may have in these other documents.
CONCLUSION AND ORDER
In these circumstances the respondent is entitled to the substance of the relief it seeks in respect of the documents described in paragraphs (a), (b), (c), (d), (e), (h) and (j) of the schedule to the amended interim application filed 17 March 2011.
A question arises whether, in light of my findings, and the fact that privilege in these documents inheres in Mr Walker, it is necessary or appropriate for the Court to grant injunctions against the applicants concerning the use and return of the privileged documents. In my view, given the status of the first applicant and his control of the second applicant, and the background to this application, it is sufficient for the Court to make declarations concerning the status of the privileged documents on the understanding that the applicants will then not use or return those documents for the purpose of this proceeding.
The respondent is, however, entitled to its costs of this application.
The Court:
1.Declares that the documents described in paragraphs (a), (b), (c), (d), (e), (h) and (j) of the Schedule to the respondent’s amended interim application filed 17 March 2011 and currently in the possession of the first applicant, are the subject of legal professional privilege and may not be used in these proceedings and ought be returned to Duncan Allister Walker as soon as practicable.
2.Orders that the applicants pay the respondent’s costs of the interim application to be taxed if not agreed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 12 April 2011
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