Denford and Manville

[2020] FamCA 177

FAMILY COURT OF AUSTRALIA

DENFORD & MANVILLE [2020] FamCA 177

FAMILY LAW – EVIDENCE – Admissibility – legal professional privilege – s 125 Evidence Act 1995 (Cth) – asserted overarching discretion to permit the adducing of documents the subject of legal professional privilege not upheld.

Family Law Act 1975 (Cth)

CW & CW (1998) 22 Fam LR 750
Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543
Ding & Ding (2019) 59 Fam LR 262
Glencore International AG v The Commissioner of Taxation (2019) 372 ALR 126
Hutchings & Clarke (1993) FLC 92-373

APPLICANT: Mr Denford

RESPONDENT: Ms Manville

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 5995 of 2019

DATE DELIVERED: 28 February 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 27 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Evans Brandon Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Goodwin

SOLICITOR FOR THE RESPONDENT: Naughton McCarthy Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms McMillan of Queen’s Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

Amended on 18 March 2020 pursuant to rule 17.02 of the Family Law Rules 2004

IT IS ORDERED THAT

1. The Application in a Case filed on 20 February 2020 by the Independent Children’s Lawyer is dismissed.

2. The following documents be placed into a sealed envelope with the same to be marked “Not to be opened without further Order of a Judge”:

   (a)the Submissions on behalf of the Independent Children’s Lawyer filed 24 February 2020;  and

   (b)the document entitled “Documents to be relied upon by Queen’s Counsel for the Independent Children’s Lawyer” dated 27 February 2020;  and

   (c)the Submissions on behalf of the Father filed on 27 February 2020;  and

   (d)the Submissions on behalf of the Mother filed 26 February 2020;  and

   (e)the affidavit of Mr C filed 26 February 2020;  and

   (f)the documents marked as Exhibits 1, 2, 3, 4 and 5 in the proceedings on 20 February 2020;  and

   (g)a copy of the 30 July 2019 correspondence produced by Dr B in compliance with the subpoena served upon him.

3. The parties have liberty to apply on the giving of notice by email to each other in relation to any other order thought necessary, given the dismissal of the Application in a Case filed 20 February 2020.

AND IT IS FURTHER ORDERED THAT

1. In the event that any party seeks an order that another pay the costs of and incidental to the Application in a Case filed 20 February 2020:

   (a)any such party shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and

   (b)the party against whom an order for costs is sought shall file and serve within a further fourteen (14) days thereafter any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

   (c)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

   and any such application for costs shall be considered in Chambers. 

IT IS DIRECTED THAT

1. The Registry Manger of the Brisbane Registry of the Family Court of Australia to take all necessary steps to ensure that the documents listed in paragraph 2 of this Order are suppressed from the Court from the Court’s Case Management System.

NOTATION:

This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending paragraph (2)(e) to correct a spelling error.

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 Denford & Manville 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 BRISBANE

FILE NUMBER: BRC 5995 of 2019

Mr Denford

Applicant

And

Ms Manville

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By Application in a Case filed 20 February 2020, the Independent Children’s Lawyer seeks to be able to adduce, as evidence in the proceedings to be heard by Forrest J starting on 2 March 2020, a copy of correspondence from the mother’s solicitors to the mother dated 30 July 2019.

2. This correspondence was included in documents provided by Dr B, the mother’s treating psychiatrist, in answer to a subpoena issued at the request of the Independent Children’s Lawyer. 

3. It was unchallenged for the purpose of this Application that when the mother provided the correspondence to Dr B, she proceeded on the basis that her communications with him were confidential. It is also unchallenged, for the purpose of this Application, that Mr B, the mother’s solicitor, was unaware that she had provided Dr B with a copy of the 30 July 2019 correspondence. Mr B gave evidence that, if he had known that this was the case, he would have obtained the mother’s instructions to object to the inspection of the same when it was produced by Dr B, on the basis that, as the correspondence contained a summary of legal advice provided during conference on 12 July 2019, it was the subject of legal professional privilege or “client legal privilege” as described in Part 3.10 of the Evidence Act 1995 (Cth).

4. However, the reality is that no objection was taken to the inspection of the documents produced by Dr B.  It is also the case that the Independent Children’s Lawyer inspected those documents, including the correspondence dated 30 July 2019, on 14 February 2020.  In correspondence bearing that date, the Independent Children’s Lawyer informed the solicitors for each of the parents that, having that morning inspected the documents, she had read the correspondence dated 30 July 2019.  The Independent Children’s Lawyer also advised of her view that, by disclosing the correspondence to Dr B, the mother had expressly waived legal professional privilege.  She also informed of her intention to tender a copy of the correspondence at the trial to start next week before Forrest J.

5. The Independent Children’s Lawyer enclosed a copy of the correspondence dated 30 July 2019 with her correspondence.  It seems that it was as a consequence of this that the father’s solicitors first became aware of the 30 July 2019 correspondence – although it also seems more likely than not that they would have become aware of the same had they inspected the documents on the same day as the Independent Children’s Lawyer or shortly thereafter.

6. In any event, by correspondence dated 18 February 2020, the mother’s solicitors took issue with the course adopted by the Independent Children’s Lawyer.  They asserted that she had forwarded privileged communications to the father’s solicitors and also raised that, in her correspondence, the Independent Children’s Lawyer had not identified any basis on which the content of the 30 July 2019 correspondence was asserted to have any probative value in the proceedings between the parents. 

7. Each of the 30 July 2019 correspondence and the other correspondence relating to it, which passed between the Independent Children’s Lawyer and the solicitors for the parents is an Exhibit in this Application.

8. It is relevant to record that whilst the father had, in his Initiating Application filed 28 May 2019, sought an order that the parents be restrained from questioning the children with respect to allegations of abuse, or causing them to be interviewed or examined by any person or agency in relation to any allegation of abuse, and causing them to attend on medical or allied health professionals with respect to the allegations of abuse, no order to that effect had been made as at 12 July 2019 or 30 July 2019.

Overview

1. The contents of the 30 July 2019 correspondence clearly establishes, in my view, that the dominant purpose of the conference on 12 July 2019, and the correspondence itself, was to provide the mother with legal advice or legal professional services in relation to the parenting proceedings listed for final hearing before Forrest J next week.

2. In any event, it was accepted, by those who appeared for the Independent Children’s Lawyer and the father, that the July 2019 correspondence is such as to enliven the operation of s 118 (legal advice) and s 119 (litigation) of the Evidence Act 1995 (Cth); that is, it was accepted that the 30 July 2019 correspondence reiterated confidential communications which occurred on 12 July 2019 between the mother (the client) and the lawyers she had engaged for the dominant purpose of the lawyers providing legal advice (a term I note that is to be construed broadly to include advice about what should sensibly and prudently be done in the relevant legal context) to her, and that the contents of the correspondence were the contents of a confidential document prepared by the mother’s lawyers for the dominant purpose of the lawyers providing legal advice to the mother.

3. Save for the contention about the asserted overarching discretion to permit the adducing of documents the subject of legal professional privilege, absent a conclusion that the legal professional privilege – or client legal privilege – enveloping the 30 July 2019 correspondence is lost by virtue of the application of s 125 of the Evidence Act 1995 (Cth), the correspondence dated 30 July 2019 is not admissible in the proceedings.[1]

4. Whilst the Independent Children’s Lawyer initially informed the parties that her view was that, in providing Dr B with a copy of the correspondence dated 30 July 2019, the mother had waived legal professional privilege in relation to the same, this contention was not pressed by the Independent Children’s Lawyer or on behalf of the father at the hearing of the Application. 

5. Rather, the Independent Children’s Lawyer and the father contended as follows:

   a)by virtue of the operation of s 125 of the Evidence Act 1995 (Cth) [entitled “Loss of client legal privilege: misconduct”], s 118 of the Evidence Act 1995 (Cth) does not operate to prevent the adducing of the confidential communications contained within the 30 July 2019 correspondence or the correspondence itself; and/or

   b)that, because of the terms of s 60CA of the Family Law Act 1975 (Cth), which provides that, “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”, and irrespective of the operation of the relevant provisions of the Evidence Act 1995 (Cth), this Court has an overriding discretion to permit the adducing of evidence otherwise found to be the subject of client legal privilege if persuaded that the best interests of the child, the subject of the proceedings, require that evidence to be admitted.

The asserted overriding discretion

[1] See s 134 of the Evidence Act 1995 (Cth).

1. I am not persuaded that the Court has the asserted overriding or overarching discretion to admit evidence the subject of legal professional privilege because s 60CA of the Family Law Act 1975 (Cth) mandates that, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

2. I am not persuaded that the Court has a discretion to allow communications which are the subject of legal professional privilege to be adduced because the Court considers that to do so may be in the best interests of the child (or children) the subject of the proceedings for parenting orders.

3. Whilst reliance was placed on Hutchings & Clarke[2] – in which the Full Court of this Court determined that where, in without prejudice settlement negotiations, the father told the mother that he only wanted custody of the child for what I will term “financial reasons”, public policy considerations required the Court to override the privilege of the parties engaged in negotiations because to fail to do so would have meant that the child would remain in conditions detrimental to the child’s welfare – the decision was delivered prior to the commencement of the Evidence Act 1995 (Cth).

4. Given this, and the subsequent commencement of the Evidence Act 1995 (Cth), and the terms the subject of discussion and consideration in this Application, I do not regard Hutchings & Clarke[3] as binding authority now for the principle contended for by the father and the Independent Children’s Lawyer in this Application.

5. Similarly, I do not regard CW & CW,[4] a decision of the Full Court delivered after the commencement of the Evidence Act 1995 (Cth), to contain any binding statement of principle supportive of the contended for overarching or overriding discretion. In that case, the disputed communication was found to be admissible because the trial judge concluded that it was not a confidential communication within the meaning of section 118 of the Evidence Act 1995 (Cth). The conclusion that, irrespective of that conclusion, it would have been admissible in any event because of Hutchings & Clarke[5] – (described in the judgment of the Full Court in CW& CW[6] as standing for the proposition that where the best interests of the child are concerned, issues of legal professional privilege do not operate to exclude evidence if, in the discretion of the trial judge, the interests of the child require that the evidence be admitted) was not the subject of consideration on appeal other than by way of the Full Court noting that it was not necessary, for the purpose of the appeal, to consider that matter further.

6. I am bound to accept that it is now well settled that:

   a)whilst legal professional privilege is a rule of substantive law which is available to a client to resist the giving of information or the production of documents which would reveal communications between the client and lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services including representation in legal proceedings,[7] it is not merely this but, rather, is an important common law immunity;[8]  and

   b)statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.[9]

   [2] (1993) FLC 92-373.

   [3] (1993) FLC 92-373.

   [4] (1998) 22 Fam LR 750.

   [5] (1993) FLC 92-373.

   [6] (1998) 22 Fam LR 750.

   [7] See Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at [9], and Glencore International AG v The Commissioner of Taxation (2019) 372 ALR 126 at [21] and [23].

   [8] See Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at [11].

   [9] See Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at [11].

7. I consider that none of the provisions within the Family Law Act 1975 (Cth) manifest the clear intention required to displace the privilege endowed upon the 30 July 2019 communication by s 118 and s 119 of the Evidence Act 1995 (Cth). Further, there is no necessary implication from the same to that effect. None of the provisions of the Family Law Act 1975 (Cth), in my view, abrogate the privilege accorded by s 118 and s 119 of the Evidence Act 1995 (Cth) to the 30 July 2019 correspondence. In fact, Part 3.10 of the Evidence Act 1995 (Cth) is not particularised in s 69ZT(1) of the Family Law Act 1975 (Cth) as one of those provisions of the Evidence Act 1995 (Cth) which do not apply to child related proceedings, with the consequence that this Part, within which s 118 and s 119 are located, remains applicable to the same.

8. The decision not to include Part 3.10 of the Evidence Act 1995 (Cth), or any of the sections contained within it, in those particularised in s 69ZT(1) of the Family Law Act 1975 (Cth), is, in my view, a clear indication of the intention to ensure that such provisions remain applicable in child-related proceedings.

9. Given this, I consider that, in this case, the only way in which the legal professional privilege which it is accepted exists in respect of the 30 July 2019 correspondence can be overridden is by application of s 125 of the Evidence Act 1995 (Cth). That section relevantly provides that the applicable division of the Evidence Act 1995 (Cth) does not prevent the adducing of evidence of the communication made, or the contents of a document prepared by a client or lawyer, in furtherance of the commission of a fraud.

10. Before considering whether the Independent Children’s Lawyer and/or the father have discharged the onus they bear of establishing, on the evidence before the Court, that there are reasonable grounds for finding that the necessary fraud was committed, and that the communication was made in furtherance of the commission of the fraud so that the Court may find that the communication was so made or the document so prepared, it is useful to reiterate the following matters:

    a)the rationale underpinning legal professional privilege is the determination that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers;[10]  and

    b)whilst it has been recognised that legal professional privilege does not promote the public interest which lies in the fair conduct of litigation – which requires all relevant documentary evidence be available – the public interest which supports the privilege is paramount to this more general public interest;  that is, the law has struck a balance between two competing public interests such that, once privilege is found to exist, no more is required for effect to be given to it and in that sense it is “absolute”;[11]  and

    c)the paramountcy afforded to legal professional privilege can have serious consequences;  and

    d)it has been the policy of the law for a very long time that the public interest in the administration of justice is sufficiently secured by the grant of immunity from disclosure effected by the existence of legal professional privilege.[12]   

Was the communication recounted in the 30 July 2019 correspondence made in furtherance of the commission of a fraud?[13]

[10] See Glencore International AG v The Commissioner of Taxation (2019) 372 ALR 126 at [27].

[11] See Glencore International AG v The Commissioner of Taxation (2019) 372 ALR 126 at [29].

[12] See Glencore International AG v The Commissioner of Taxation (2019) 372 ALR 126 at [32].

[13] S 122(1)(a) Evidence Act 1995 (Cth).

1. Given that privilege attached when the legal advice was given on 12 July 2019, and when the 30 July 2019 correspondence was created, the question to be resolved, it seems to me, is whether, at those times, the advice was given and the correspondence made in furtherance of the commission of a fraud.

2. In Ding & Ding,[14] the Full Court of this Court said, at 74, that:

   Fraud for the purposes of section 125 is not limited to legal fraud in the narrow sense; it can include the kind of sharp practice often associated with equitable fraud encompassed by the Shorter Oxford Dictionary sense of dishonesty, namely, lack of probity, disposition to deceive, defraud or steal.

   [14] (2019) 59 Fam LR 262.

3. I accept the submission by Counsel for the mother to the effect that the reference to “sharp practice” in the paragraph just quoted does not mean that any kind of conduct, thought, or asserted to come within the descriptor “sharp practice”, will come within the enunciated definition of “fraud” for the purposes of s 125 of the Evidence Act 1995 (Cth), and that the same requires there to be an element of dishonesty.

1. I accept that obtaining legal advice in the context of an ongoing dishonest or fraudulent undertaking, so that the advice will impact upon or inform a client in the course of that undertaking, will be regarded as being in furtherance of the improper purpose. However, whilst fraud, for the purposes of s 125 of the Evidence Act 1995 (Cth), is not limited to legal fraud in the narrow sense and encompasses that which the Full Court outlined in Ding,[15] there still remains the requirement that, in order to persuade of the reasonable grounds adverted to in s 125(2) of the Evidence Act 1995 (Cth), there needs to be evidence beyond mere assertion.

   [15] 59 Fam LR 262.

2. I accept that an allegation of fraud must be made in clear and definite terms and that there must be an evidentiary basis to support the necessary conclusion that there are reasonable grounds to conclude that the correspondence was prepared in furtherance of the commission of the fraud. 

3. Whilst reference was made to the differences in the contents of affidavits sworn by the mother on 18 July 2019, 7 February 2020 and 24 February 2020, such differences do not seem to me to persuade that, when the legal advice was given on 12 July 2019, and the correspondence created on 30 July 2019, at those respective times the same was made or prepared by the mother’s legal representatives in furtherance of the commission of a fraud.

4. Given my conclusion, vis-à-vis the operation of s 125 of the Evidence Act 1995 (Cth), it is inappropriate that I set out, in particular detail here, those aspects of the 30 June 2019 correspondence submitted to provide evidence of the commission of the fraud at the relevant time or the bases on which it was submitted that the same was made or prepared in furtherance of the commission of the fraud or the submissions made by Counsel in support of and in opposition to the orders sought by the Independent Children’s Lawyer and father.

5. I record in particular though, my acceptance of the submissions made by Counsel for the mother at paragraphs 46 and 47 of the written submissions prepared on her behalf, and sealed on 26 February 2020.

6. I consider it sufficient to dispose of the Application that I state simply that I am not persuaded that the matters adverted to by Counsel who appeared for the Independent Children’s Lawyer and the father, in their respective written submissions and orally during the course of the hearing yesterday, are such as to persuade of there being reasonable grounds for finding that, as at 12 July 2019 and 30 July 2019, the mother was involved in a fraud, as adverted to in those submissions and orally, or in an ongoing fraudulent or dishonest undertaking.

7. Similarly, I am not persuaded that there are reasonable grounds for finding that the communication made on 12 July 2019 or that the 30 July 2019 document were respectively made or prepared in furtherance of the commission of a fraud.

8. Given these conclusions, I decline to make the order sought by the Independent Children’s Lawyer and father.  Consequently, the Application in a Case filed 20 February 2020, will be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 28 February 2020.

Associate:     

Date:              28 February 2020