Dunwell and Dunwell and Ors (Expert Evidence)

[2010] FamCA 499

FAMILY COURT OF AUSTRALIA

DUNWELL & DUNWELL AND ORS (EXPERT EVIDENCE) [2010] FamCA 499

FAMILY LAW – EVIDENCE – respondents seek to file affidavit of adversarial expert – evidence relating to filing of an affidavit by a solicitor in proceedings and waiver of legal professional privilege – application refused

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

British American Tobacco Australia Services Limited v Cowell (Representing the Estate of McCabe (Deceased)) (2002) 7 VR 524
B & B [2005] FamCA 289
H & N [2003] FamCA 613
Higginson-Swann & Higginson-Swann [2007] FamCA 617
Macquarie Bank Limited and B and Another (2006) FLC 93-290
N & N [2006] FamCA 558
T & D [2006] FamCA 1560

APPLICANT: Mr Dunwell

RESPONDENT: Ms Dunwell

2^nd RESPONDENT: Mulligan Solicitors

3^rd RESPONDENT: Mr Volker

4^th RESPONDENT: Ms James

FILE NUMBER: SYC 8682 of 2007

DATE DELIVERED: 14 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 14 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC
Mr Beaumont

COUNSEL FOR THE RESPONDENT: Dr Harper SC
Mr Gould

COUNSEL FOR THE 2^ND RESPONDENT: Dr Harper SC
Mr Gould

COUNSEL FOR THE 3^RD RESPONDENT:

Dr Harper SC

Mr Gould

COUNSEL FOR THE 4^TH RESPONDENT:

Dr Harper SC

Mr Gould

Orders

1. The application of the wife and other respondents to defer delivering the Judgment and Orders consequent upon the determination of the Application contained in Exhibit “XX” is refused.

2. The respondent’s application contained in Exhibit “XX” is refused.

IT IS NOTED that publication of this judgment under the pseudonym Dunwell and Dunwell and Ors (Expert Evidence) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8682 of 2007

MR DUNWELL

Applicant

And

MS DUNWELL

Respondent

And

MULLIGAN SOLICITORS

2^nd Respondent

And

MR VOLKER

3^rd Respondent

And

MS JAMES

4^th Respondent

REASONS FOR JUDGMENT

1. An application is made on behalf of the respondents that I defer delivering judgment in relation to the application which was made on 12 April 2010 and argued on that day and which has subsequently been the subject of written submissions.  The application seeks that the respondents be permitted to file an affidavit, limited to adversarial expert evidence, stating the alleged current practice among legal practitioners, practicing in the court, with regard to swearing affidavits in clients’ proceedings. 

2. The application is supported by a submission that it would be more appropriate to deal with the application for disqualification first on the basis that if that application was acceded to then all of the outstanding interlocutory matters should then go to another Judge. 

3. On behalf of the husband, Mr Richardson opposes the deferring of the judgment.  It is submitted the judgment should be delivered.  He points out that the application for the expert evidence was made after the application for disqualification had been filed and, obviously, in full knowledge of it.  The application has been run.  Time, effort and cost have been put into the hearing and the judgment should be delivered.

4. For my part, I am in a position to deliver judgment now.  In my view, the application for deferral should be refused.  The matter has been argued, I have reserved to prepare the judgment and I am now ready to do so. If it transpires that I am not disqualified from further hearing the matter then it is one less event which will be required in the progression of the case to final determination. 

5. Before the Court for determination is an application by the wife and other respondents in an application currently part heard before me.  The application made on 12 April 2010 was contained in the Exhibit marked “XX”.  The order sought is as follows;

   “Direct that time for compliance with paragraph 3 of the orders made on 10 March 2010 be extended up to and including 27 April 2010 with any such evidence filed by the wife be limited to adversarial expert evidence concerning current practice among legal practitioners with regard to swearing affidavits in clients’ proceedings.” 

6. The application arises in the context of a hearing, now part-heard, of an application filed on 24 February 2010 by the husband which, inter alia, sought that the wife be restrained from instructing Mulligan Solicitors and/or Mr Volker and/or Ms James to act for her in these proceedings.  The application filed 24 February 2010 also sought orders against Mr Volker and Ms James. 

7. The company, Mulligan Solicitors, Mr Volker and Ms James have been joined as parties to the application and they have been represented by both senior and junior counsel in the hearing of the application.  Thus far I have delivered two judgments in the hearing of the husband’s application filed 24 February 2010,  those judgments being published on 8 and 10 March 2010. 

8. The effect of the determination delivered on 10 March 2010 was to refuse to admit the contents of paragraphs 19 and 20 of the wife’s affidavit, sworn 19 February 2010.  That affidavit had been relied upon by the wife in the hearing of the husband’s application, filed 24 February 2010.  The consequence of the ruling of 10 March 2010 is to not admit evidence which, essentially, is evidence by the wife’s solicitors which, if admitted and given weight, may tend to clarify what was intended by the author of a letter written by the wife’s solicitors to Wasser, Cooperman and Carter who are attorneys practising in the United States of America.  It further removes a written assertion that the wife’s solicitors have not disclosed or used documents or information filed in Court in these proceedings for a purpose unrelated to the conduct of these proceedings.

9. On 10 March 2010 I made further directions which included the following: 

   “3.  On or before 31 March 2010 each of the respondents to the current application are to file and serve any affidavit evidence they wish to rely upon for the purpose of determination of the husband’s application filed 24 February 2010.”

10. I have been informed that no affidavit has been filed pursuant to that direction, however, Exhibit “XX” now seeks an extension of the time provided for compliance with that direction to 27 April 2010, subject to further specification as contained in that Exhibit.

11. In submission I was told by Dr Harper, senior counsel for the wife and the other respondents, that, if permitted, the wife would file an affidavit by an expert which would establish that:

    “there is a perception among solicitors who practise in Family Law that if an affidavit is filed by a solicitor in proceedings then there is a serious risk that such filing will lead to a successful application for waiver of legal professional privilege.”

12. It is submitted by the wife that it is not necessary for the expert to be acquainted with the particular facts in this case in order for that expert to be able to provide relevant and possibly useful evidence to the Court. 

13. The wife submits that the information from the proposed expert ultimately goes to provide evidence which could be taken into consideration when considering any submission by the husband in the hearing of the application filed 24 February 2010 that an inference should be drawn as to why neither of the solicitor respondents provided any evidence in the hearing of that application.  In later submissions this was restated as being:

    “to obviate any successful submission that adverse inferences should be drawn in the absence of either solicitor respondent filing an affidavit in the current application.”

14. I was told that the proposed expert is a lawyer. The proposed witness has not been named. If I assume that such an expert, as foreshadowed by the wife, was available to give evidence, and without considering the provision in the Family Law Rules 2004 (Cth) (“the Rules”) as to the circumstances in which the Court might entertain an application for the appointment of an adversarial expert as opposed to a jointly appointed single expert, would the evidence so given be capable of achieving the conclusion sought by the wife. It seems to me it may not. There are a number of reasons why I consider that end may not be achieved:

    a)   There is nothing to say the wife’s solicitor, that is, either of the solicitor respondents would operate their practice based on perception rather than informed decision following careful consideration of the Family Law Act1975 (“the Act”) and Rules, the jurisprudence of this Court, the writings by learned authors of text on the waiver of legal professional privilege and the decisions of other courts on the topic of waiver of legal professional privilege.

    b)     Assuming the respondent’s solicitors were practising by adopting an approach which was consistent with the approach specified in the proposed expert evidence, then what have they done to obtain advice, do further research and otherwise inform themselves on the subject of the waiver of the legal professional privilege since 10 March 2010?  Although the expert may give evidence of a perception of what might happen in the Family Court of Australia in relation to the filing of affidavits by solicitors, what does the jurisprudence establish on the topic?  If the perception is erroneous, how might that achieve the end which the wife wishes to achieve?

    c)     It is not proposed by the respondents to provide evidence of or to make a submission that it would be impossible for the solicitor respondents to file an affidavit which provides all the relevant facts and materials they wish to canvass in order to rebut or negate any inference or to provide a relevant assurance or give a relevant undertaking without giving rise to an order waiving legal professional privilege.

    d)     If an order for waiver of legal professional privilege did arise from any affidavit filed by the solicitor respondents, would it be a waiver of all legal professional privilege pertaining to all communications between the solicitor and client, or would it be restricted. If the affidavit was skilfully drafted it is hard to see how the order would be otherwise than a waiver in relation to a restricted group of documents/communications. 

15. As a consequence of the concerns I had about the application for the appointment of an expert, or allowing the wife to call expert evidence, as outlined above, I directed the wife to cause a list of decided cases, of this Court, which might support the contended perception together with any other submissions, relative to the wife’s expert evidence application, to be filed and served by 12 noon on Tuesday, 13 April 2010. 

16. I have now had the opportunity to consider those authorities and submissions and note that today at 10.23am my Associate received further submissions from the respondent.  I will address those submissions later.  The first thing to note about the written submissions is that there is not one example of a case decided by this Court which might support the perception which is said to inform the practice.  The only case referred to is a case decided by the Victorian Supreme Court.  The case sighted is British American Tobacco Australia Services Limited v Cowell (Representing the Estate of McCabe (deceased)) (2002) 7 VR 524. Having read that decision it is hard to see how it could support the stated perception.

17. I accept that in the abovementioned decision, at first instance, the trial Judge determined that the inclusion of two letters in an affidavit sworn by a solicitor, not being a solicitor representing one of the parties, gave rise to a waiver of categories of documents in circumstances where the two letters disclosed would normally attract a claim for legal professional privilege. 

18. However, the Victorian Supreme Court of Appeal held that determination was incorrect and held there was no waiver.  Thus, the affidavit sworn by the solicitor was entirely effective in disclosing two documents which would have attracted a claim for legal professional privilege (if that privilege had not been deliberately waived by the attachment of the letters to the affidavit) whilst, at the same time, being carefully crafted so as not to waive privilege in relation to any other documents.

19. In my own research I can find only one decision of this Court in which a solicitor filed an affidavit which contributed to a finding of waiver of legal professional privilege.  I’m not to be held to say there is only one decision but rather I have only been able to find one in my research.  The decision is that of Justice Brown in N & N [2006] FamCA 558, delivered on 30 June 2006. In that case, waiver of legal professional privilege arose not because of anything said by a solicitor in an affidavit, rather it arose because the Judge determined the husband had put in issue “state of mind” and necessarily asserted reliance on the representations of the wife. The Judge found specifically that waiver of legal professional privilege would not have arisen in that case as a result of disclosure.

20. For my own part, I have provided a number of written decision on waiver of legal professional privilege. Those decisions include B & B [2005] FamCA 289; H & N [2003] FamCA 613; T & D [2006] FamCA 1560; Higginson-Swann & Higginson-Swann [2007] FamCA 617 and Macquarie Bank Limited and B and Another (2006) FLC 93-290. Only in the case of T & D (supra) did waiver of legal professional privilege arise out of an affidavit sworn by a solicitor for a party. 

21. In that case there was a central issue of life expectancy of the wife.  The wife’s solicitor, in an affidavit, said words to the effect that the wife had given him instructions in relation to matters pertaining to a recent health check.  There was an order made for limited disclosure of documents to which the claim of legal professional privilege had been made.

22. As referred to earlier, I was provided with further submissions from the respondent at 10.23am today in relation to this determination.  Those submissions identified my decision in T & D (supra), Macquarie Bank Limited and B and Another (supra) and Higginson-Swann & Higginson-Swann (supra).  The submissions further referred to decisions of Judges of this Court relating to applications for waiver of legal professional privilege.  Some of the cases involved claims arising from correspondence between solicitors.  Cases from other jurisdictions were quoted. 

23. None of the decisions referred to above reported a decision where a solicitor for a party to the proceedings filed an affidavit which gave rise to waiver of legal professional privilege. So far as the authorities cited for other jurisdictions are concerned same must be seen to be only marginally relevant as the evidence proposed to be given by the respondent’s expert is relevant to solicitors who practise in Family Law. 

24. Arising out of the above decisions it is clear that the jurisprudence of this Court could not properly inform a perception, amongst lawyers who practise in the Family Court of Australia (even if it were limited to a perception about practice in the Sydney Registry of the Court), that the filing of an affidavit by a solicitor for a party in proceedings will occasion a serious risk of having their client’s confidential communications made available for scrutiny by the opponents as a result of implied waiver of legal professional privilege. 

25. Even if I accept the evidence of an acceptable expert, to the effect proposed by the respondents in this application, it would have no application to the facts of this case as they currently exist.  The making of Order 3 on 10 March 2010 would take this case out of the category where the Court might find it understandable that the respondent solicitors have chosen not to go into evidence because of the stated perception.  The making of the Orders on 10 March 2010 must be seen to have given the respondent solicitors sufficient time to properly inform themselves on matters of law, whether by personal research or through obtaining of advice from counsel.  In this case the solicitors are parties to the proceedings and they are represented by both senior and junior counsel.

26. I have not been told the identity of any lawyer who is willing to provide expert evidence in the nature of that asserted by the respondents.  Not only would such a person have to be prepared to provide the evidence, he or she must also be accepted by the Court as having the requisite expertise to do so.  If it is a matter of law which the respondents say inform reluctance to file an affidavit then that law can be put before the Court by the respondents in submission in this hearing. 

27. I propose, based upon the above, to refuse the respondent’s application to adduce evidence from an expert in the nature outlined by them. 

28. Before leaving the matter I wish to note that there is no issue between the parties that, as a general proposition, lawyers for parties to litigation should avoid giving evidence in those proceedings unless there is no other course available.  There are probably many reasons why lawyers for parties should try and avoid giving evidence in proceedings in which they act.  Not the least of the reasons is that they may have to cease to act for their client.  However, where it is necessary for a lawyer to give evidence in the proceeding in order to achieve justice for their client then they ought not to be timid or reluctant to do so. 

29. Before making an order which refuses the order sought in Exhibit “XX” I need to add that, prior to embarking upon the writing of this Judgment, I inquired of senior counsel for the respondents whether they would seek an extension of Order 3 of 10 March 2010 in the event that I refused a specific extension framed in Exhibit “XX”.  I was informed that the respondents sought no further direction. 

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  22 June 2010