Doran v Investor Financial Planning Pty Ltd
[2010] FCA 257
FEDERAL COURT OF AUSTRALIA
Doran v Investor Financial Planning Pty Ltd [2010] FCA 257
Citation: Doran v Investor Financial Planning Pty Ltd [2010] FCA 257 Parties: MAXINE JOY DORAN v INVESTOR FINANCIAL PLANNING PTY LTD (T/AS SUPERMASTER MANNING & PERRY FINANCIAL PLANNING) & ANOR File number(s): VID 177 of 2009 Judge: BROMBERG J Date of judgment: 16 February 2010 Catchwords: PRACTICE AND PROCEDURE – Notice to produce – solicitors file – Whether legal professional privilege waived by implied consent Cases cited: Benecke v National Australia Bank (1993) 35 NSWLR 110
Mann v Carnell (1999) 201 CLR 1
Seven Network Ltd v News Limited (No.10) (2005) 227 ALR 704Date of hearing: 16 February 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr R Wilson Solicitor for the Applicant: Tolhurst Druce & Emmerson Counsel for the First and Second Respondents: Mr P Riordan SC with Mr S McGregor Solicitor for the First and Second Respondents: Wotton & Kearney
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 177 of 2009
BETWEEN: MAXINE JOY DORAN
ApplicantAND: INVESTOR FINANCIAL PLANNING PTY LTD (T/AS SUPERMASTER MANNING & PERRY FINANCIAL PLANNING) & ANOR
Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
16 FEBRUARY 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The respondents’ notice to produce dated 11 February 2010 be set aside.
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
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 177 of 2009
BETWEEN: MAXINE JOY DORAN
ApplicantAND: INVESTOR FINANCIAL PLANNING PTY LTD (T/AS SUPERMASTER MANNING & PERRY FINANCIAL PLANNING) & ANOR
Respondent
JUDGE:
BROMBERG J
DATE:
16 FEBRUARY 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
I have determined that the respondents’ notice to produce dated 11 February 2010 should be set aside.
The notice to produce seeks the files of the applicant’s solicitors, Tolhurst Druce & Emmerson, in relation to:
Maxine Doran and any Supreme Court proceedings brought under Part IV of the Administration and Probate Act1958 (Vic) by Katie Gogoll and Brooke Patel (including, but not limited to all cost estimates, cost calculations, receipts for payments, general correspondence, instructions and file notes).
Order 33 r 12 of the rules of the Court relevantly provides that where a party in any proceeding serves on another party a notice to produce, the documents called upon for production shall be produced unless the Court otherwise orders. I will make an order so ordering and I do so for these reasons.
The basis for the applicant’s opposition to production is a claim of legal professional privilege. The strong public interest considerations at the core of the legal professional privilege rule are expressed by Gleeson CJ in the following passage from Benecke v National Australia Bank (1993) 35 NSWLR 110, at 111:
The rule that prevents an authorised disclosure of confidential communications between a client and a legal advisor when such communications are for the purpose of obtaining legal advice or for use in existing or anticipated litigation constitutes a restriction upon the capacity, of course, to ascertain the truth in certain circumstances. That restriction, however, is regarded as acceptable on the ground that it promotes the public interest and assists the administration of justice by facilitating the representation of clients by legal advisors. It does this by encouraging uninhibited communication. Thus, in cases where the rule operates, one aspect of the public interest is preferred against another (discovering the truth).
The respondents’ argument proceeded on the basis of an acceptance that the entirety of the solicitor’s files had been privileged, but argued that the applicant had waived the privilege by putting certain matters at issue in this proceeding.
In Seven Network Ltd v News Limited (No.10) (2005) 227 ALR 704, Sundberg J usefully set out the relevant principles dealing with the waiver of legal professional privilege. Without here repeating those principles, I respectfully adopt his Honour’s analysis, in particular, at [27] to [48]. There are a number of key considerations in that analysis which I wish to note. They are as follows.
Firstly, as his Honour observed at [35] by reference to the High Court’s decision in Mann v Carnell (1999) 201 CLR 1, what brings the waiver, is the inconsistency which the courts informed by considerations of fairness, perceive between the conduct of the client and the maintenance of the confidentiality and not by some overriding principle of fairness operating at large.
The second matter I wish to emphasise stems from what his Honour said at [44]. In particular, that:
The mere fact that legal advice may be material to an issue in the proceedings, even one raised by the client, does not establish that the conduct of the client is inconsistent with maintaining confidentiality in the privileged communications.
Thirdly, I refer to his Honour’s observations at [46] that the cases illustrate that the inconsistency principle has had a relatively narrow application. Lastly, I adopt his Honour’s observations at [48] where his Honour said that the waiver of legal professional privilege on the ground of implied consent will involve questions of degree. Sundberg J noted 3 matters that go to that issue. His Honour said:
These include:
·the centrality or otherwise to the proceedings of the issue to which the privileged communications are said to relate;
·if the issue involves a state of mind or belief, the likelihood that legal advice played a significant part in the foundation of that state of mind or belief; and
·whether there is any apparent inconsistency between the position taken by the party claiming privilege (whether at trial or earlier) and the likely contents of the privileged communications.
I would respectfully add a fourth consideration to the non-exhaustive list that Sundberg J has identified at [48], and that is whether there is a cogent forensic purpose of sufficient importance to warrant access to the privileged communications.
In this proceeding, the applicant’s claim for damages includes legal costs related to the Part IV proceedings referred to in the notice to produce. The respondent says that whether the costs incurred were reasonable is a matter put in issue by the applicant and a matter which the respondents are entitled to test by reference to the contents of the solicitor’s files. I need not deal further with that aspect of the notice to produce, as the parties have agreed that that matter can be dealt with in another way. An independent costs consultant will be engaged to assess the reasonableness of the legal costs charged in the Part IV proceedings by Tolhurst Druce & Emmerson. If the parties are unable to agree upon an independent consultant, a Deputy Registrar of the Court will nominate one. The assessment will be conducted on the basis that the contents of the solicitor’s files are not to be disclosed to the respondents.
However, the respondents further contend that it is necessary for them to access the files in order to evaluate what part of the costs incurred are referrable to dealing with a particular issue in the Part V proceedings. That issue is identified as whether moneys held in the Macquarie ADF fund were properly part of Mr Harris’s estate.
The suggestion is that if the respondents are in any way responsible for the legal costs, it is only that aspect of the costs for which liability may be founded. However, the applicant’s claim is for the entirety of the legal costs. The applicant has not claimed, in the alternative or otherwise, a portion only of the legal costs. The applicant has not, at this juncture, put at issue in the proceeding a claim for part of the cost. Even if it had or subsequently does, I doubt that that would constitute a waiver in the relevant sense. However, I need not determine that issue at this point. To avoid further conjecture, it may be appropriate that the independent costs consultant be asked to assess what part of the legal costs incurred are referrable to the issue identified by the respondents. I leave that for the parties to consider and agree upon if they can.
Next, the respondents argued that access to the files was necessary to assess whether the costs were incurred for a legitimate purpose, as opposed to some other motivation such as vengeance on the part of the applicant. I reject that contention. Whether the applicant recovers the legal costs will be dependent on the applicant demonstrating that it was necessary for her to engage solicitors to protect her interests. That matter will be determined upon objective considerations based on the applicant’s legitimate needs. The applicant’s state of mind including any vengeance or other motivation seems to me to be irrelevant. Even if I was otherwise satisfied of an inconsistency, as a question of degree, this issue has little or no centrality to the proceedings nor is it founded on a cogent forensic purpose sufficient to warrant access to the privileged communications.
Lastly, the respondents say that by claiming damages referrable to a psychological disorder said to be caused by the occurrence of the Part IV proceedings, the applicant has put at issue her state of mind during the Part IV proceedings. Thus, the respondents say they seek access to the files for the purpose of examining whether or not any expression of distress, anxiety or the like are recorded in the exchanges between solicitor and client.
At this juncture, the applicant has not indicated any desire on her part to rely upon any communications by the applicant to her solicitor of distress, anxiety or the like during the
Part IV proceedings. If the applicant did that, an inconsistency of the relevant kind might then arise. No inconsistency has yet arisen and, in particular, as a matter of degree, the issue raised by the respondents has insufficient centrality and is not founded upon a cogent forensic purpose.
The respondents’ counsel was not able to demonstrate a cogent forensic purpose. The lack of any recorded expression of distress, anxiety or the like in the solicitor’s files would not be demonstrative of a lack of distress or anxiety experienced by the applicant. The applicant’s psychological reaction to the occurrence of the Part IV proceedings was of no relevance to any issue in that proceeding. Evidence of an absence of communication on that subject matter is likely to do no more than demonstrate the irrelevance of that issue to those proceedings.
For those reasons, I will order that the respondents’ notice to produce dated 11 February 2010 be set aside.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg . Associate:
Dated: 22 March 2010
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