Cornett and Hext (No 2)

[2020] FamCA 586

FAMILY COURT OF AUSTRALIA

CORNETT & HEXT (NO. 2) [2020] FamCA 586

FAMILY LAW – Legal professional privilege – common law principles of waiver of legal professional privilege – whether statements made by the wife during evidence in chief and cross examination and statements of the wife’s counsel are inconsistent with maintaining confidential communications with her former lawyers

Family Law Act 1975 (Cth) ss114(3), 72(1), 66J, 66K, 66L
Evidence Act 1995 (Cth) ss 117-126

Mann & Carnell [1999] HCA 66; (1999) 201 CLR 1
Osland v Secretary of the Department of Justice [2008] HCA 37
Commissioner of Taxation v Rio Tinto [2006] FCAFC 86
Benecke v National Australia Bank (1993) 35 NSWLR 110
Attorney-General (NT) v Maurice (1986) 161 CLR 475

APPLICANT: Ms Cornett

RESPONDENT: Mr Hext

FILE NUMBER: MLC 5714 of 2018

DATE DELIVERED: 20 July 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Williams J

HEARING DATE: 20 April 2020 and 18 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cannon

SOLICITOR FOR THE APPLICANT: Maclegal

COUNSEL FOR THE RESPONDENT:	Mr Tim North SC with Ms Dellidis
SOLICITOR FOR THE RESPONDENT:	Kenna Teasdale Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Eidelson
SOLICITOR FOR THE INDEPENDENT CHIDREN’S LAWYER	Victoria Legal Aid

Orders

1. The solicitors for the wife are granted leave to inspect the documents produced by Q Lawyers pursuant to the subpoena filed by the husband on 23 January 2020, to redact any part of the documents, which fall outside the scope of the documents sought by the subpoena, and such inspection occur within 7 days of the date of these orders.

2. Forthwith upon inspection of the documents referred to in paragraph 1, the solicitors for the wife notify the other parties’ solicitors of same.

3. Subject to compliance with paragraphs 1 and 2 hereof, the documents produced by Q Lawyers pursuant to the subpoena filed by the husband on 23 January 2020, be released for inspection by all parties and their legal representatives.

4. All extant interim applications are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5714 of 2018

Ms Cornett

Applicant

And

Mr Hext

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 24 May 2018, the wife commenced proceedings in this Court seeking parenting and financial orders.

2. The wife seeks orders for the parties’ three young children, B aged 8, C aged 7 and D aged 5 to live with her and that she have sole parental responsibility for the children. She asserts that the children are at risk in the care of their father, with whom they currently live.

3. The husband asserts that the children are at an unacceptable risk in the wife’s care, to the extent that not only should the children live with him, but she should not spend any time with the children.

4. The trial commenced on 20 January 2020 and after 5 hearing days the trial was adjourned part heard. Due to the COVID-19 pandemic the trial was unable to recommence on the scheduled date. The Court, Counsel for both parents and the Independent Children’s Lawyer agreed that the matter was not suitable for an electronic hearing. The face-to-face trial is scheduled to recommence on 31 August 2020, subject to the Court’s COVID-19 policy.

Subpoena filed by the husband on 23 January 2020

1. During the course of the wife’s evidence, on 23 January 2020 the husband’s solicitors’ filed a subpoena to produce documents.

2. The subpoena was addressed to the managing partner of the wife’s former lawyers Q Lawyers and its service company and marked to the attention of a partner of that firm.

3. Part E of the subpoena required production of the following:

   All documents containing any record of any instruction or statement by the wife, Ms Cornett born on … 1975, from 14 March 2019 until 2 April 2019 concerning the underwear the subject of Order 5 of the orders made by the Honourable Justice Macmillan on 19 March 2019, including any such instructions or statement by the wife concerning the placing of any substance on that underwear by any person or the destruction or burning or partial destruction or burning of that underwear by any person.

4. As referred to in the husband Written Submissions, Senior Counsel for the wife agreed with limiting the terms of the subpoena only to the specific matters raised by the wife during cross-examination, and submitted that legal professional privilege did not attach to the documents being sought by the husband.[1]

   [1] Transcript of Proceedings, Cornett & Hext (Family Court of Australia, Williams J, 24 January 2020) pages 3 to 14.

5. On 4 February 2020, a Notice of Objection to the Subpoena was filed by Q Lawyers. On 6 February 2020 Q Lawyers produced the documents to the registry, as required by the subpoena. The dispute is now whether the documents so produced, should be released to the husband’s lawyers.

6. The issues to be determined are as follows:

   a)Whether the wife has waived legal professional privilege as attached to documents described by the husband in a subpoena issued 23 January 2020 addressed to the wife’s former lawyers;

   b)Should the husband be permitted to inspect and copy documents produced pursuant to the subpoena;

   c)If the husband is permitted to inspect the documents, should the wife’s solicitors be permitted to inspect the documents prior to release to redact or remove communications which continue to be privileged.

Context of the Subpoena

1. To understand the context of the subpoena, it is necessary to briefly refer to a previous interim proceeding.

2. Central to the interim dispute were:

   i)the events of 14 March 2019, when the children were spending time with their mother; and

   ii)the reasons for noncompliance with orders made by Macmillan J on 19 March 2019.

3. On 15 March 2019 the wife filed an urgent Application in a Case seeking that the children live with her and that she be permitted to occupy the former family home. An affidavit in support of the application was filed on 15 March 2019.

4. Paragraph 16 of that affidavit asserted the mother had discovered a blood like substance on D’s underwear whilst changing her. That was brought to the attention of the professional supervisor, who then made a mandatory notification to the DHHS.

5. The matter was listed in the duty list before Macmillan J on 19 March 2019 when orders were made including for D’s underwear to be handed to the Independent Children’s Lawyer for DNA testing.

6. On 20 March 2019, the husband filed a Response to the Application in a Case and an affidavit in support. On 1 April 2019, he filed a further affidavit. At Paragraph 8 of the 1 April affidavit the husband deposed, that on 21 March 2019, when the matter was stood down, his lawyers advised him the wife had admitted:

   i)Destroying D’s underwear;

   ii)She had spread whatever substance was used on D’s underwear, so that it appeared they were bloodied.

7. During the interim hearing before me on 1 and 2 April 2019, Senior Counsel for the wife advised the court that she did not intend to rely on paragraph 16 of the wife’s affidavit of 15 March 2019. She did not make any submissions in response to paragraph 8 of the husband’s April 2020 affidavit.

8. On 17 April 2019, interim parenting orders were made and detailed Reasons were delivered which addressed the events between 14 March 2019 and 2 April 2019.

9. As expected, during the trial the wife was vigorously cross examined about the substance on D’s underwear and the events of 14 March 2019 and the subsequent days.

10. On the 4th day of the trial, 23 January 2020, an oral application was made on behalf of the husband to issue a subpoena to the wife’s former lawyers, seeking production of documents and the attendance of her former lawyers and Counsel for cross examination. On that day, the wife was represented by Senior and Junior Counsel.

11. There was discussion about whether a more appropriate way to proceed was an application pursuant to Rule 15.71., to enable cross examination of proposed witnesses by Counsel for the husband as well as Counsel for the Independent Children’s Lawyer.  

12. I was informed that both junior counsel would confer and provide A Minute of Proposed Consent orders to my chambers. A draft proposed minute of order was submitted by email on 24 January 2020.

13. On 30 January 2020, an email was forwarded to both junior Counsel requesting a notation to the proposed minute of orders, in relation to legal privilege, prior to the orders being made. A copy of the relevant portions of the transcript was provided to each Counsel.

14. On 4 February 2020, the wife filed a Notice of Address for Service, as she had obviously withdrawn her instructions from the solicitors she had engaged to act on her behalf during the trial.

15. On 6 February 2020, the husband’s solicitors emailed an amended draft of the proposed minute, which included the relevant notations, as referred to in the transcript, and advising that a copy of the amended minute had been provided to junior counsel for the wife, prior to the wife withdrawing her instructions.

16. On 6 February 2020, the wife forwarded an email to my chambers advising that she was no longer represented by her former solicitors and Counsel, had never waived legal privilege, and did not consent to the proposed orders.

17. The matter was listed for mention on 24 February 2020 when the mother represented herself. On that day, Mr S QC sought and was granted leave to appear on behalf of Q Lawyers, and Mr T QC sought and was granted leave to appear on behalf of Senior Counsel, who had represented the wife at the interim proceedings.

18. On that day, Mr North SC advised the Court that the husband’s lawyers were seeking only the production of documents and were not, at that stage, pursuing an application for cross examination of any witnesses.

19. Both Mr S QC and Mr T QC made submissions and thereafter sought to be excused.

20. Mr S QC submitted that the legal professional privilege is the wife’s privilege and it is for her to argue whether it has been waived or not waived.

21. Mr T QC submitted that it would not be necessary for Senior Counsel to be called to give oral evidence if the documents produced from Q Lawyers confirmed his instructions that the wife had expressly relinquished her client legal privilege during the litigation.

22. The wife submitted to the court that she never waived (her) legal rights in the witness stand. I arranged for a transcript of that day to be made available to the wife and other parties.  

23. The matter was adjourned to 22 April 2020 to enable both parties to file written submissions, the wife sufficient time to obtain legal advice and apply to Victoria Legal Aid in relation to the S102NA assistance scheme.

24. On 14 April 2020, the husband filed written submissions.

25. The matter was further mentioned electronically on 22 April 2020 when the wife was still self-represented and had not filed written submissions.  

26. On 28 May 2020, the wife engaged her current lawyers and on 18 June 2020 the matter was again listed electronically. All parties were represented.

27. Senior Counsel for the husband relied on the written submissions filed 15 April 2020 and the Reply submissions filed 19 June 2020.

28. Counsel for the wife relied upon the written submissions filed 17 June 2020.

29. Counsel for the Independent Children’s Lawyer did not wish to be heard on the subpoena issue.

Applicable Law - Waiver

1. Paragraphs 29 - 36 of the written submissions on behalf of the husband succinctly set out the relevant law. The wife’s submissions take no issue with the submissions as to law. I will adopt those submissions in the following paragraphs.

2. As a general principle, a confidential communication between a lawyer and a client, or the contents of a confidential document prepared for the dominant purpose of providing legal advice, are subject to legal professional privilege. The client is the holder of any privilege and is the only person who can waive the privilege.

3. Legal professional privilege can be waived by express or implied acts or conduct. It is the maintenance of the confidentiality of the communication by the client that will determine whether the client has waived the privilege, and if so in what form[2]. Waiver is an “act of conduct” which amounts to forgoing the right to keep certain information confidential. The immediate result of waiver is the release or disclosure of information which was formerly protected.[3]

   [2]Mann & Carnell (1999) 201 CLR 1 at [29].

   [3] Suzanne B. McNicol, The Law of the Privilege (Law Book Company, 1992) 21.

4. The subjective intention of the holder of privilege does not determine whether the privilege is impliedly waived.

5. Sections 117 – 126 of the Evidence Act1995 (Cth) applies to legal professional privilege in relation to the tender or admission of documents into evidence. Those sections of the Evidence Act do not apply to the adducing of evidence, which must be decided according to common law principles.

6. In this matter, the current application of the husband is to inspect the relevant section of the Q Lawyers file.

7. The test for waiver of privilege at common law is set out by the High Court in Mann & Carnell at [29]

   [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. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … 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.

8. In Osland v Secretary of the Department of Justice [2008] HCA 37 the High Court stated that the assessment whether there is an inconsistency between the conduct of the privilege holder and the confidentiality which the privilege is meant to protect is:

   [45] to be made in the context and circumstances of the case, and in light of any considerations of fairness arising from that context of those circumstances, and

   [49] questions of waiver are matters of fact and degree

9. The fact that an asserted waiver emerges in cross examination, is not relevant to the determination of whether there is an act or conduct inconsistent with maintaining privilege.

10. In Commissioner of Taxation v Rio Tinto [2006] FCAFC 86 the Full Court of the Federal Court stated:

    [52] These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence.  Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication. 

The Husband’s Written Submissions

1. Firstly, Senior Counsel for the husband contends that the wife’s Senior Counsel was unequivocal in her submission that there is no legal privilege attached to the documents the subject of the subpoena.

2. Paragraph 16 of the written submissions refers to comments made by the wife’s Senior Counsel during the hearing of 21 January 2020[4] as follows:

   It is not a waiver to what she said to somebody…. It’s only privilege if she’s asked what they said back to her….So there is no waiver in my submission… She’s required to answer…And it doesn’t waive the privilege. Because it’s only when she strays into what the advice was.  She should be warned before she does that.

   [4] Transcript of Proceedings, Cornett & Hext (Family Court of Australia, Williams J, 21 January 2020) page 159, lines 15 to 30 (ML Smallwood SC).

3. Furthermore, in the context of the documents sought by the subpoena, Senior Counsel for the wife agreed that the subpoena should be limited to matters specifically raised by the wife in cross examination, as legal professional privilege did not apply to that class of document.

4. Secondly, it is asserted:

   a)that the wife directly put in issue previously confidential communications to her lawyers  by virtue of the following:

   i)The statements of her Senior Counsel in her opening;

   ii)Her own evidence in chief on 20 January 2020 that she denied ever telling anyone the underwear had been destroyed[5];

   iii)Prior statements made in the Children’s Court proceedings in November 2019, which are detailed at paragraph 18A – G of the written submissions;

   iv)Her cross examination as to discussions she had with her lawyers, specifically her evidence on 21 January 2020 (summarised at paragraph 18 H – P of the written submissions), and on 22 January 2020 (summarised at paragraph 18 Q – R of the written submissions).

   b)the manner in which the wife has conducted her case at trial is inconsistent with the statements, which the husband alleges were made to the husband’s lawyers on 21 April 2019, which were not contradicted by the wife or her lawyers during the interim proceedings;

   c)the wife clearly put in issue the nature of her instructions to her former lawyers and her actions constitute an overwhelming implied waiver of legal privilege, if not an express waiver;

   d)even if she did not subjectively intend to waive legal privilege, her acts and conduct are clearly inconsistent with maintaining confidentiality of communication;

   e)the documents at the subject of the subpoena have a direct bearing upon issues to be determined by the court to ascertain the best interests of the three children;

   f)if the documents sought to be subpoenaed are not released, it would result in the wife’s inconsistent statements remaining unchallenged, which would not be fair to the husband and could possibly result in the court being misled.

   [5] Transcript of Proceedings, Cornett & Hext (Family Court of Australia, Williams J, 20 January 2020) page 80, line 9 (ML Smallwood SC).

The Wife’s Written Submissions

1. In the Written Submissions on behalf of the wife, the wife’s Counsel contends:

   a)the wife’s submissions are confined to the issue of the documents sought by the subpoena, as opposed to the possibility of calling oral evidence;

   b)any waiver of privilege by the wife was:

   i)unintentional; and

   ii)not as a result of what was put on her behalf by her former Senior Counsel.

   c)the wife takes no issue with the husband submissions of law as set out at paragraphs 29 – 36 of his written submissions;

   d)the husband must also satisfy the Court that it would be unfair or misleading to his case to allow assertions by the wife about what she told or instructed her solicitors at the time to stand, without affording husband the opportunity to challenge that evidence[6], or in other words the court should not release the protected material unless it is satisfied that in all the circumstances of the case it would be unfair to the husband not to do so;

   e)it is relevant to address not only the issue of waiver by the wife, but the evidence about the five “issues” to which the husband asserts the protected material is relevant.

   [6]Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481.

1. The five issues are as follows:

   i)whether the wife deliberately adulterated the child D’s underwear/deliberately damaged the underwear/failed to deliver up the underwear (Category 1);

   ii)whether the wife’s denials that she told her lawyers she placed a blood like substance on the underwear and destroyed them, are false (Category 2);

   iii)whether the wife has recently invented her asserted belief that the husband set her up by adulterating the underwear (Category 3).

2. The evidence pertaining to the three categories referred to in the previous paragraph is as follows:

Category 1

i)the husband has amply demonstrated the inconsistencies in the wife’s various accounts;

ii)the wife has given exhaustive evidence about these issues;

iii)it is not reasonably likely or “on the cards” that disclosure of the information requested would directly bear on these three issues because of what is already known to the Court and what the Court is able to rely on;

iv)the protected material would not assist the Court in getting to the truth of the matter;

v)the husband would not suffer unfairness if access to the protected documents was refused.

Category 2

vi)this is an issue which go solely to credit;

vii)there is considerable material before the Court for the Court to determine what it makes of the wife’s denials in circumstances where certain matters have previously gone unchallenged;

viii)the husband would suffer no unfairness in the furtherance of the issue of the wife’s credit at trial if access to the protected documents was refused.

Category 3

ix)this issue falls into a discrete category;

x)prior to the wife giving evidence neither the Court nor the husband knew about the existence of this allegation;

xi)the wife’s mother gave some evidence on the issue although the wife does not assert that the evidence is sufficient to argue against disclosure to the husband of protected material;

xii)the suggestion by the husband that the wife has recently invented this belief amounts to a collateral attack on the wife’s credit;

xiii)it is conceded the Court may determine it would be unfair to the husband to deny him access to the material sought so that he may fairly test this issue;

xiv)it is agreed that the suppression of any relevant documentation could potentially result in a court being misled, whichever way it fell.

The Husband’s Reply Submissions

1. On 19 June 2020, Counsel for the husband filed submissions in reply.

2. The submissions may be summarised as follows:

   i)The wife’s submissions impliedly acknowledge that the wife has waived her privilege;

   ii)The assertion that a party challenging a claim of privilege must additionally establish that the maintenance of the waived privilege would be unfair to him is wrong;

   iii)The High Court in Mann & Carnell said:

   [29] 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 the maintenance of the confidentiality; not some overriding principle of fairness operating at large

   iv)In Mann, the plurality referred repeatedly to Benecke v National Australia Bank (1993) 35 NSWLR 110, the facts of which are similar to this matter, as follows:

   [29] Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication.

   v)The proposition that refusal to grant access to the documents would not cause unfairness to the husband, because there is already ample evidence supporting his case, ignores the inconsistency between the maintenance of the privilege and the evidence of the wife in this Court and the Children’s Court and assertions made by her Senior Counsel, as to those communications;

   vi)Category 2 is not an issue solely related to credit, rather it will assist the Court’s assessment of harm to the children in the household of either parent;

   vii)It has been conceded that there is no basis to resist production of the documents pertaining to Category 3.

Discussion and Conclusion

1. I accept the submission of the husband’s Senior Counsel that in two critical respects, the wife chose to advance a case that directly contradicted statements apparently made on her behalf and presumably with her authority, by her then lawyers, to the husband’s lawyers on 21 March 2019 during the interim proceedings.

2. The “act/s of conduct” of the wife, which the husband asserts is/are inconsistent with maintaining the confidentiality of her communications with her former lawyers includes the opening of her Senior Counsel in these proceedings, her evidence in chief and during cross examination in this Court and her evidence in the Children’s Court.

3. In this Court, both the wife’s evidence in chief and her answers during cross examination clearly refer to:

   a)her instructions and statements concerning D’s underwear to her then lawyers;

   b)her instructions and statements concerning the placing of a substance on or destruction of D’s underwear to her then lawyers.

4. Examples of her evidence in this Court are as follows:

   Evidence in Chief on 20 January 2020

   i)she denied ever telling anyone that the underwear had been destroyed Evidence during Cross Examination on 21 January 2020;

   Evidence during Cross Examination on 21 January 2020

   ii)she told her former solicitor or previous Senior Counsel on 21 March 2019 that she had not brought the underwear to court because she had “destroyed” or “slightly destroyed part of them” that the underpants had “caught fire” and that she had “burnt them”;

   iii)she was not sure whether she had told her previous Senior Counsel she had “part destroyed” or “fully destroyed” the underwear after court on 19 March 2019;

   iv)she “absolutely [did] not” tell her previous Senior Counsel at court on 21 March 2019 that she had spread a substance over D’s underwear so it appeared they were bloodied;

   v)she told her previous Senior Counsel that she “made [the underwear] worse” and that she “had them in her hands” and she “can’t be sure that she did not put some of her blood on them”;

   vi)she instructed her lawyers not to rely upon paragraph 16 of her affidavit sworn 15 March 2019 at the hearing in April 2019;

   vii)she told her lawyers a month after the events of 14 March 2019 that she believed the husband set her up;

   viii)she told her previous lawyers on 21 March 2019 that she still had the underwear;

   ix)her solicitors made the decision to exclude the supervision report of 14 March 2019, from the bundle of documents relied upon in the Children’s Court proceedings.

5. The wife’s evidence in the Children’s Court similarly refers to instructions she did or did not give to her former lawyers. Examples of her comments are referred to in the transcript of her evidence on 8 November 2019, which is Exhibit 8 in the current proceeding, and are:

   i)she admitted that the supervision report of March 2019 was deliberately omitted from the bundle of supervision reports tendered, in accordance with advice of her solicitors;

   ii)she did not instruct her lawyers at court on 21 March 2019 that she had made up the accusation of a bloodstain in D’s underwear;

   iii)she told her lawyers that when she picked up D’s underwear she was in shock and can’t be sure if any of her blood had got on it;

   iv)she did not instruct her lawyers to inform the husband’s lawyers that she had put the substance on the underwear herself;

   v)she did not instruct her solicitors to report anything to the husband’s lawyers.  She told them what happened and she does not know what they said;

   vi)she still has the underwear and did not report to her lawyers or the court that she had destroyed them.

6. In addition to the statements of the wife’s former Senior Counsel that legal professional privilege does not attract to the documents sought be the subpoena, the wife’s own conduct has unequivocally put in issue the instructions she provided to her former solicitors about the events of 14 March 2019 and subsequent days, pertaining to the contamination and or destruction of D’s underwear.

7. The central issue in the substantive proceedings is whether each parent poses an unacceptable risk of harm to the children. In that context the wife’s instructions to her lawyers prior to the orders of 19 March 2019 will have a direct bearing on findings as to unacceptable risk. The documents sought are not limited to credibility issues.

8. In the context of the wife’s evidence in chief and evidence during cross examination in this Court, the assessment of any risk and the best interests of the children, will be greatly assisted by an examination of the veracity of the allegation levelled at the husband and whether the wife consented to the orders of 19 March 2019, when she may have known it was not D’s blood on the underpants.

9. The consequences of the allegation and the orders include subjecting D to a blood test and an invasive, intimate medical examination. At that time D was 4 years old.  

10. The documents sought to be inspected are likely to be particularly relevant to a determination of unacceptable risk including:

    a)findings whether the wife:

    i)deliberately adulterated D’s underpants;

    ii)deliberately damaged the underpants;

    iii)failed to provide the underpants for testing, as required by the court orders; and (Category 1);

    b)whether the wife’s denials that she deliberately contaminated the underpants are true or false (Category 2);

    c)whether the wife recently invented the assertion that the husband had set her up by adulterating the underwear (Category 3).

11. Despite the submissions of the wife’s Senior Counsel, it is probable the wife thought that she had not expressly waived legal professional privilege, as stated in her correspondence to the Court and her statement to that effect in court.  However, in accordance with the statements of the plurality of the Full Court in Mann & Carnell, when referring to Benecke, the lack of subjective intention to abandon privilege is not a determining factor. Her evidence, referred to in these reasons, was an intentional act inconsistent with confidentiality of communications with her legal advisers.

12. I do not accept submissions of Counsel for the wife which assert that beyond establishing waiver, I must also be satisfied that the maintenance of the waived privilege would be unfair to the husband.

13. In that regard I accept the submissions of Senior Counsel for the husband that the assertion is wrong and rely on his submissions in Reply, and in particular I have reached my conclusion as to inconsistence in the context of considerations of fairness, as required by the authorities.

14. I also do not accept the submissions of Counsel for the wife, asserting that a refusal to grant access to the documents sought, would not result in unfairness to the husband because there is sufficient evidence in support of his own case in relation to the category one and two documents. Such a submission does not sit with the obvious inconsistency between the wife’s evidence in both courts and the maintenance of the privilege.

15. After having considered the submissions of Counsel for both parties, I have determined that the wife’s conduct is clearly and blatantly inconsistent with her maintaining confidential communications with her former lawyers. In my view such a conclusion is inescapable. Her conduct has traversed two jurisdictions and includes the many examples set out in these reasons. As a result of her conduct, the husband should be permitted to inspect the documents produced by Q Lawyers.

16. At the commencement of her oral argument, Counsel for the wife submitted that if I determined that legal professional privilege did not attach to the documents produced by the wife’s former lawyers, the wife’s lawyers should be afforded an opportunity to inspect the documents to make appropriate redactions, to ensure that the documents to be inspected by the husband’s lawyers were limited to those sought by the subpoena. Senior Counsel for the husband agreed with that course of action, and did not request that I should personally view the documents for that purpose.

17. The orders I intend to make are as follows:

    i)the documents sought by the subpoena should be released to the husband for viewing;

    ii)prior to release of the documents to the husband, the wife’s solicitors should be afforded an opportunity to inspect the documents to redact any part of the documents, which fall outside the scope of the documents sought by the subpoena.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 20 July 2020.

Associate: 

Date: 20 July 2020