Curtain and Curtain - [2018] FamCA 769

FAMILY COURT OF AUSTRALIA

CURTAIN & CURTAIN

[2018] FamCA 769

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Legal professional privilege – Whether privilege attaches to file of solicitor in proceedings before another court – Dominant purpose – Whether there has been waiver of any privilege that may attach to the file by the disclosure of a letter containing a settlement offer.

AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234
Commissioner of Taxation v Rio Tinto Limited [2006] FCAFC 86
Grant v Downs (1976) 135 CLR 674
Mann v Carnell (1999) 201 CLR 1
Stamp & Stamp [2007] FamCA 420
Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 248

APPLICANT:

Ms Curtain

RESPONDENT:

Mr Curtain

FILE NUMBER:

ADC

4409

2013

DATE DELIVERED:

27 September 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

13 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pyke QC

SOLICITOR FOR THE APPLICANT:

Jordan & Fowler Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Mr McQuade

SOLICITOR FOR THE RESPONDENT:

Piper Alderman

Orders

That the respondent’s objection to the inspection of documents produced by Mr KK pursuant to the subpoena issued 9 May 2018 is dismissed.
That leave is given to the applicant to inspect all file notes, correspondence and other documents produced by Mr KK in respect of the said subpoena.
That the applicant be restrained and an injunction granted restraining her, or her agents from communicating the contents of or providing copies of any documents produced by Mr KK pursuant to the subpoena to any other person including the duly authorised officers or agents of W Pty Ltd or Q Trust SAVE AND EXCEPT her legal advisors from time to time.

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 Curtain & Curtain 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 ADELAIDE

FILE NUMBER: ADC 4409 of 2013

Ms Curtain

Applicant

And

Mr Curtain

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 26 July 2016 judgment was delivered and orders were made by way of property settlement and the alteration of the interests of Ms Curtain (“the applicant”) and Mr Curtain (“the respondent”).
By Initiating Application filed 29 November 2017 the applicant seeks that pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) the orders for property settlement be set aside.
As part of the proceedings the applicant caused a subpoena to issue on 9 May 2018 directed to Mr KK seeking that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Curtain and Curtain

Details

AGLC: Curtain and Curtain [2018] FamCA 769
Case: [2018] FamCA 769
Decision Date: 27 September 2018

CaseChat Overview and Summary

In the matter of *Curtain and Curtain*, Berman J of the Supreme Court of Victoria was required to determine an application concerning the inspection of documents produced by a third party, Mr KK, pursuant to a subpoena. The applicant sought to inspect these documents, while the respondent objected to such inspection.

The central legal issues before the Court were whether the respondent's objection to the inspection of documents produced by Mr KK should be upheld, and consequently, whether the applicant should be granted leave to inspect those documents. The Court also considered the terms upon which any such inspection might occur, including whether any restrictions should be placed on the applicant's ability to disseminate the contents of the documents.

Berman J dismissed the respondent's objection to the inspection of the documents. The Court granted the applicant leave to inspect all file notes, correspondence, and other documents produced by Mr KK in response to the subpoena. However, the Court also granted an injunction restraining the applicant, or her agents, from communicating the contents of or providing copies of these documents to any other person, including the officers or agents of W Pty Ltd or Q Trust. The sole exception to this restriction was the applicant's legal advisors.

Orders

Orders of the court

That the respondent’s objection to the inspection of documents produced by Mr KK pursuant to the subpoena issued 9 May 2018 is dismissed.

That leave is given to the applicant to inspect all file notes, correspondence and other documents produced by Mr KK in respect of the said subpoena.

That the applicant be restrained and an injunction granted restraining her, or her agents from communicating the contents of or providing copies of any documents produced by Mr KK pursuant to the subpoena to any other person including the duly authorised officers or agents of W Pty Ltd or Q Trust SAVE AND EXCEPT her legal advisors from time to time.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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