Dargan and Chesnik
[2010] FMCAfam 726
•9 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DARGAN & CHESNIK | [2010] FMCAfam 726 |
| FAMILY LAW – Practice and procedure – evidence – parenting application – whether mother waived legal professional privilege. |
| Evidence Act 1995, ss.118, 119, 122(2) & (3) |
| Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 Mann & Carnell [1999] HCA 66 Macquarie Bank Limited & B and Anor [2006] FamCA 1052 |
| Applicant: | MR DARGAN |
| Respondent: | MS CHESNIK |
| File Number: | SYC 3607 of 2008 |
| Judgment of: | Demack FM |
| Hearing date: | 29 June 2010 |
| Date of Last Submission: | 29 June 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 9 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gordon |
| Solicitors for the Applicant: | BL Crane & Associates |
| Counsel for the Respondent: | Mr S Priestley |
| Solicitors for the Respondent: | Wall & Company Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission New South Wales |
ORDERS
That the following documents are to be produced by the mother:
(a)All correspondence and/or other communications between the mother and/or her legal representatives and each and every person the mother has, at any time sought to be a witness in these parenting proceedings:
(i)With each and every legal representative;
(ii)At any time since engaging any lawyer;
(iii)Any potential witness whether or not an affidavit has been sworn or affirmed, filed or read in Court;
(iv)Including but not limited to statutory declarations, affidavits, statements, emails, letters, phone messages and file notes, including drafts of any of these;
(v)All correspondence communication in any form, being written, electronic or otherwise; and
(vi)In its entirety, unedited, unexpunged, with any attachments, annexures or further material contained therein.
That the mother is to cause her present solicitors to write to each of the mother’s former solicitors enclosing this Order, with specific reference contained in the covering letter to the requirement of the production of the documents referred to in Order 1(a)(i)-(vi) hereof.
That the letter to each of the former solicitors be sent within three (3) business days of the date of these Orders.
That the mother’s present solicitors are to request of each of the mother’s former solicitors the release of the documents referred to in Order 1(a)(i)-(vi) hereof within fourteen (14) days.
That the mother is to pay the reasonable costs, if any, incurred by each of her former solicitors in producing the documents referred to in Order 1(a)(i)-(vi) hereof.
That the mother is to cause her present solicitors to provide full disclosure of the documents to the solicitors for the father referred to in Order 1(a)(i)-(vi) hereof within two (2) business days of them, or each of them, being received by the present solicitor for the mother.
That the mother cause her present solicitors to copy the father’s solicitor into all correspondence with each of the mother’s former solicitors, and for the mother to cause her present solicitors to ask of all of the former solicitors to copy the father’s solicitors into all correspondence in reply or otherwise arising from this Order.
IT IS NOTED that publication of this judgment under the pseudonym Dargan & Chesnik is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SYC 3607 of 2008
| MR DARGAN |
Applicant
And
| MS CHESNIK |
Respondent
REASONS FOR JUDGMENT
This is an interlocutory application in parenting proceedings with respect to the disclosure of certain documents, which might be protected by client legal privilege.
On 12 May 2010, this matter came before me for final hearing. For reasons which related to the contemplated length of the trial in the then estimates of trial counsel, and the exigencies of the circuit, it was ordered by me that the trial would not proceed at that time, but rather fixed dates for a longer trial were allocated in August 2010. There was another matter which needed to be dealt with on that day, however. The father’s counsel raised a preliminary issue to do with the disclosure of certain documents, seemingly within the care or control of the mother.
At that time, read before me, was an affidavit of the solicitor of the mother, Benjamin Krasnostein, filed 11 May 2010. The affidavit appears to go to why the mother’s trial affidavits were not filed in accordance with the trial directions of an order made on 7 October 2009, which required affidavits to be filed and served by 12 April 2010. The affidavit annexed correspondence which flowed between the solicitor and/or the mother, and the witnesses the mother sought to rely upon at trial. Mr Krasnostein had received instructions to act on behalf of the mother on or about 6 April 2010. He deposed to having previously been the solicitor for the mother between 31 July 2009 and 30 October 2009.
The correspondence annexed to the affidavit includes reference by the prospective witnesses to earlier documents authored or edited for them and by them. For example, Ms B, in an email of 8 April 2010, states:
Herewith my Affidavit/ STAT DEC to replace the one I wrote and had witnessed while I was still in Australia at the end of January 2010. There were some errors in that document so I hereby give notice of withdrawing it as well as previous submissions. Everything in the STAT DEC and in my previous submissions have been integrated in this expanded version which I believe provides more lucid and compelling evidence.
In another email by Ms B on 12 April 2010, she says:
Please find the final version of my STAT, DEC. I hope all these different versions aren’t too confusing. There were things in the previous document that needed to be changed.
In an email from one Ms D to the solicitor on 26 April 2010, she says:
Im [sic] sending a revised statement. I think it reads better and has been better thought through.
And Ms E, in an email of 13 April 2010 to the solicitor, says:
Here with my final Affidavit.
and the subject line refers to “replacement final affidavit”. In an email from the same Ms E on 22 April 2010, she says to the solicitor:
please find attached fianal [sic] affidavit to usurp all previous ones and I await your prompt reply for me to have it in the correct format sot [sic] that I can have it witnessed signed and returned to you.
It is clear from the commentary by the authors of the emails and potential witnesses that they have provided information which has been adapted or altered in some way, and which, in an earlier draft, said something different than the affidavits subsequently filed. The preliminary matter raised by counsel for the father was to submit that the mother had waived her client legal privilege through her solicitor’s affidavit, which had been filed and served, and that the documents – all of them and in whatever format, electronic or otherwise – which had passed between the mother and/or her lawyer and the prospective witnesses should be produced to the father for his inspection.
It was submitted that the documents called for would be more likely than not to be relevant to proceedings. The Independent Children’s Lawyer counsel did not wish to be heard on this issue. The mother’s counsel’s response was to confirm that the affidavit went to the lateness of the filing of trial material. Without arguing against the waiver of privilege, counsel for the mother advised that there would be “no difficulty” in providing the documents sought. Further, his client had her laptop present at Court, and the process could be undertaken outside Court.
I expressed the view, held by me then (and continued to be held by me now) that the earlier statements, however described and in whatever format, of the mother’s witnesses may well be relevant to the parenting proceedings before me. The trial was adjourned. No specific directions or orders were made by me for the production of any named documents. Clearly, counsel for the mother had advised in open Court that the production of the documents would be “no difficulty”.
On 27 May 2010, the solicitor for the father swore an application in a case and two supporting affidavits. They were filed on 8 June, having been given a listing before me on 29 June 2010. The application sought an authority from the mother, executed by her and addressed to the law firms which had been her former solicitors, orders for the production of their files, an order for the production of the file of her present solicitors and an order for the production of the laptop computer.
One affidavit of the solicitor for the father, Bobbi Leigh Crane, filed
7 June 2010, deposed to having received documents from the solicitors for the mother, in the order of approximately 500 pages, which contained copies of emails between the mother and the witnesses proposed by the mother. Mrs Crane deposed to that in most if not all of the said email communications the majority of the written content of the page had been crossed out by black marker pen. The first ten pages of the documents were attached. I note that Mrs Crane’s estimate of the amount of striking-through with the marker pen appears accurate. There is a lot of blacking out.
The other affidavit of Mrs Crane deposes to the matters on the day of the trial which was to have been. The affidavit discloses that documents were not provided to the father’s legal representatives outside court on 12 May 2010. A letter from the solicitor for the mother to the solicitor of the father was faxed on 17 May 2010 and is annexed. It includes, in part, reference to the mother’s computer having broken some time over the weekend after the trial, and that the mother was unaware of the breakage until she arrived at her solicitor’s office on the day of the letter, that is, 17 May 2010. The affidavit annexes a letter from Mrs Crane’s office to Mr Krasnostein’s firm, dated 17 May 2010, which includes:
… We were advised by your Mr Krasnostein that the computer is at [L] to be repaired.
We advise, following contacting [L] computers, that we were advised that the computer and the screen have either been ‘smashed or trodden on’ which would indicate non-accidental damage.
A subsequent call on 19 May 2010 to the computer repairer revealed this conversation between Mrs Crane and Mr F at [L] Proprietary Limited at paragraph 17 of Mrs Crane’s affidavit:
Mrs Crane, “I understand you are holding a computer for
Ms Chesnik, I have got a copy of your Tax Invoice”
[Mr F] said “Yes, that’s right”.
Mrs Crane “Has any work been done on it”?
[Mr F]“Well the hard drive has been pulled out of it but no repairs have been done to it. It has been damaged.”
The affidavit of Mrs Crane makes it plain that the concern was that the source material was now lost. At paragraph 22 of her affidavit,
Mrs Crane states:
22.The material sought by the Applicant Father would be available in the files of the former solicitors and, consequently, the Applicant Father seeks to inspect these files as it is now the only way to examine the extent of the communication between the Respondent Mother and her witnesses regarding what should be included in the Affidavits.
That, then, is the basis for the application before the court.
The mother’s response
The mother filed a response on 25 June 2010 along with a supporting affidavit by her solicitor, Benjamin Krasnostein, sworn 24 June 2010. The response seeks that the application be dismissed. At paragraph 14 of his affidavit, Mr Krasnostein states:
… that the opportunity to review the “source material” has not been lost as all of the email correspondence is still stored in the Respondent Mother’s email database which is readily accessible from any remote computer.
At paragraph 24 of Mr Krasnostein’s affidavit, he refers to a letter sent to Mrs Crane on 15 June 2010, which included:
We reiterate that the only reason that certain contents had been crossed out were for privacy reasons and we further advise that we have the unmarked documents in our office. We therefore invite you to view these documents at our office, provided you supply us with an undertaking, in writing, that any private information disclosed in said documents are not to be revealed to your client.
Upon receipt of this undertaking we have no problem in arranging a time for you to attend at our office to view the said documents.
The mother’s solicitor sought that undertaking again through a letter of 23 June 2010 and a facsimile of 23 June 2010.
The position at Court
When this application was argued before me last week, I was advised that unmarked copies of the same documents were now at the solicitor for the father. I am unclear as to whether an undertaking had been given. Upon reserving my decision on this issue, I made two orders, one of which was to provide for the solicitor for the father to be able to copy the documents held at her office; the other order was to injunct the destruction of any documents or computers in the care, control or possession of the mother, pending my decision.
Client legal privilege
The Evidence Act 1995 (“the Act”) attends to the issue of client legal privilege in division 1 of part 3.10. The Act is not a code insomuch as it does no purport to cover all matters to do with evidence in courts to which it relates. But in those matters in respect of which it does make provision, the Act provides the applicable law. Section 118 provides:
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.
Section 119 relevantly provides:
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 between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Subsections (2) and (3) of s.122 are also relevant:
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
And subsection (3):
(3) Without limiting subsection (2), a client or party is taken to have so acted if:
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.
Mr Krasnostein asserts in a letter to Mrs Crane of 15 June 2010 and an annexed to his affidavit of 25 June 2010 as annexure D that:
… at no time was it ever conceded that privilege had been waived in relation to any documents.…
He repeats this assertion in the body of his affidavit. At paragraph 18, he says:
At no time was it ever conceded that privilege had been waived in relation to any class of documents in this matter. In an effort to abridge proceedings and without admissions my client agreed that a certain class of documents would be handed over to the solicitor for the Applicant Father herein.
The provisions in the Act adopt the dominant purpose test. I understand this test to entail an examination of the specified dominant purpose that a communication was made for or the document was brought into existence for. It is a question of fact. The relevant purpose with respect to a document is the purpose for bringing into existence the document containing the confidential information.
In this case it is accepted by me that the dominant purpose of the email exchanges between the solicitor and/or the mother and the mother’s potential witnesses was to produce affidavits advantageous to the mother’s case as quickly as possible. It is these documents over which the submission on behalf of the father is that privilege has been waived.
Section 122, sub (2) and sub (3) of the Act, as read out aloud before, are wholly relevant. The test, then, is whether the mother has acted inconsistently with the maintenance of her legal privilege, and from that point, whether I consider that it would be unfair to the father to allow the inconsistency to stand. It seems to me that the mother has twice acted inconsistently with the maintenance of her legal privilege. Firstly, upon her solicitor filing and serving the affidavit of 25 June 2010, and, secondly, upon her counsel advising an open Court that there would “no difficulty” in providing the referred to documents.
The real difficulty in this application, though, is the extent of the waiver, and therefore what documents must now be produced. It is submitted on behalf of the father in counsel’s written submissions that:
In the present case the affidavit of Mr. Krasnostein demonstrates that there was a collusion by Ms Chesnik and witnesses she relies upon to prepare affidavits in a similar vein with a specific intention to defeat any issue raised by Mr. Dargan.
Further, Ms. Chesnik, in pursuing this agenda, has totally disregarded the authority of this Honourable Court by knowingly providing a copy of the Family Report to potential witnesses.
Her actions in this regard were deemed so serious that her then instructing solicitors, felt compelled to withdraw from this matter.
I interpolate there that there is evidence of this and it’s contained in exhibit 2 in this application. I go on with the quote.
Given that the report by the Family consultant finds that there has been emotional abuse of [X] by the mother, the only real ability to examine the mother’s actions is for the Court to allow inspection of the files from all Ms Chesnik’s solicitors.
The ability of Mr. Dargan to fully traverse the actions of Ms Chesnik in failing to promote and maintain the relationship between he and his daughter is a key issue in this trial.
The ability of the Court to recognize the lengths Ms. Chesnik will go to, to achieve her goals is also a key factor the Court will have to examine in determining the issues at trial.
Ms Chesnik has waived her privilege.
This waiver has revealed a sustained course of conduct to defeat the rights of the Father and to attempt to destroy the relationship between father and daughter.
The Father should be able to inspect the various files to ascertain the extent of this behaviour by Ms. Chesnik.
Clearly, on the other hand, the mother has sought to limit the waiver, by, in the first instance, producing documents which have been struck through in great parts by a thick, dark pen, so as to obscure material which the mother sought to assert was irrelevant. It may be that the emails which were exchanged between the mother and/or her lawyer and her potential witnesses contained information which is extraneous to the purpose the document was brought into existence for. It is not possible for me to make any findings about that as I do not have the unmarked documents before me.
I am certainly concerned that the process of providing obscured copies to the solicitor after the failure to provide complete electronic copies, and then the computer becoming inexplicably damaged and inoperative leads to concerns about the transparency of the process and the reliability of the striking through. Clearly, the unmarked documents should be provided to Mrs Crane, and there should be no restriction on Mrs Crane and her client’s legitimate use of those documents in the preparation for trial. Should, however, the disclosure or waiver of privilege go further, the father seeks the production of the present solicitor’s entire file and the production of the files of the mother’s former solicitors.
I’m mindful of the reasoning of Giles J in the Full Court of the Federal Court in Bennett & Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 (and 210 ALR 220) where at paragraph 68, His Honour said, whilst discussing the rule as identified in Mann & Carnell [1999] HCA 66 that:
… it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.
Waiver occurs where the party entitled to privilege performs an act which is inconsistent with the confidence preserved by it. This is trite authority, and I refer in particular to Mann & Carnell [1999] HCA 66 (and 168 ALR at 86).
The extent of the documents to which I should find privilege has been waived must be determined according to notions of fairness. It seems to me that the class of documents that it is fair for the father to have access to is the class of documents to which I consider the mother has waived her legal privilege. I am mindful of the discussion about the application of this rule by Le Poer Trench J in Macquarie Bank Limited & B and Anor [2006] FamCA 1052 at paragraph 50. There His Honour determined that the waiver applied to one class of documents. Within that paragraph he had set out the rules that which he considered to be relevant, which included these:
(e) The disclosure must be seen as relevant or potentially relevant to an issue to be determined by the Court.
(f) The disclosure must illustrate conduct which shows inconsistency between a party seeking to maintain legal professional privilege in relation to some communications pertaining to or touching upon an issue in the case but not others relating to the same issue. For a waiver to be found, the Court must determine that it would be unfair to a party to allow the inconsistency to stand.
Here I consider the waiver applies to one class of documents. I describe that class thus: all correspondence and/or other communication between the mother and/or her legal representatives and each and every person the mother has at any time sought to be a witness in these parenting proceedings, with each and every legal representative at any time since engaging any lawyer, and any potential witness, whether or not an affidavit has been sworn or affirmed, filed or read in court. The correspondence includes, but is not limited to, statutory declarations, affidavits, statements, drafts of any of these, emails, letters, phone messages, file notes – they are to be in any form, written, electronic or otherwise – in their entirety, unedited, unexpunged, with all attachments, annexures or further material contained within them.
I do not consider that the mother has generally waived her client legal privilege, such that advices provided to her by her solicitor or solicitors on other matters should be produced. For example, if the mother has previously received advices about her prospects of success in this litigation, that is no business of the father.
It may well be, however, that the mother’s former solicitors hold documents which would fall into the category I have named above. I will order the mother to cause to have those produced, for they are, it seems to me, within her control, as it is her privilege that has waived.
[FURTHER ORDERS NOT TRANSCRIBED]
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Demack FM
Date: 15 July 2010
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