El Rashidy and El Rashidy and Anor - [2019] FamCA 402

FAMILY COURT OF AUSTRALIA

EL RASHIDY & EL RASHIDY AND ANOR

[2019] FamCA 402

FAMILY LAW – PRACTICE AND PROCEDURE – Evidence – subpoena objection – legal professional privilege – objection dismissed save as to part.

Evidence Act 1995 (Cth) ss117, 118, 119, 122, 124
Family Law Act 1975 (Cth) s 79

AWB Ltd v Cole and Another (2006) 152 FCR 382
Barnes v Commissioner of Taxation (2007) 242 ALR 601
Commissioner of Taxation v Rio Tinto Limited (2006) 151 FCR 341
Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Grant v Downs (1976) 135 CLR 674
Mann v Carnell (1999) 201 CLR 1
Osland v Secretary, Department of Justice (2008) 234 CLR 275
X Corporation Pty Ltd & Jess and Anor [2016] FamCAFC 43

APPLICANT:

Ms El Rashidy

FIRST RESPONDENT:

Mr El Rashidy

SECOND RESPONDENT:

AA Group Pty Ltd

FILE NUMBER:

MLC

7974

2017

DATE DELIVERED:

5 July 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

12 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T. North QC with Mr Dunlop

SOLICITOR FOR THE APPLICANT:

Nicholes Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Ms Burt

SOLICITOR FOR THE FIRST RESPONDENT:

Lander & Rogers

THE SECOND RESPONDENT:

No Appearance

Orders

The Notices of Objection filed by the husband on 8 March 2019 in relation to the subpoenae to Y Lawyers and Q Company be dismissed save as provided for in order two herein.
The husband’s objection in respect of documents numbered 2, 38-40, 44, 46, 48-51, 93, 94, 413-445 (save for 433) on the Privileged Documents List is upheld and THE COURT DECLARES that the documents and communications are subject to legal professional privilege.

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 El Rashidy & El Rashidy and Anor 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 MELBOURNE

FILE NUMBER: MLC 7974 of 2017

Ms El Rashidy

Applicant

And

Mr El Rashidy

First Respondent

AA Group Pty Ltd

Second Respondent

REASONS FOR JUDGMENT

The proceedings before the Court were first initiated as proceedings between the husband and wife each seeking final property orders. There is no issue between the parties that in accordance with s.79(2) of the Family Law Act 1975 (Cth) (‘the Act’) an alteration of existing property interests should occur. On the husband’s own application the wife will receive a 45 per cent adjustment in her favour of the parties’ asset pool which is in the main compromised of the value, still to be determined, of the B Group (‘B Group’) and its associated entities. Each of the husband and wife have been significantly involved in the formulation and operation of that entity. They remained so until unilateral acts taken by the husband after separation, as he defines that date, altered the control and ownership of parts of the entity.
On 1 March 2019 the wife’s solicitors filed subpoenae addressed to:-
a)Y Lawyers; and
b)Q Company accountants (‘Q Company’).
Service of such subpoenae was effected. Documents were delivered up pursuant to the subpoenae. The husband filed Notices of Objection to Subpoena in respect of both subpoenae on 8 March 2019.
On 30 May 2019 a Second Respondent was joined to the proceedings. Orders made that day provided, relevantly:-

1. Pursuant to s.79(10)(b) of the Family Law Act 1975 (Cth) and r.6.02(1) of the Family Law Rules 2004 (Cth), AA Group Pty Ltd in its capacity as trustee of the AA Group Trust is joined as a respondent in these proceedings.
2. Order 3 of the orders of 7 May 2019 be varied to provide that the husband provide the inventory of privileged documents with respect to the subpoenae to Y Lawyers and Q Company to the wife’s lawyers by 4.00pm on the 5 June 2019 and 4 June 2019, respectively.
3. Order 7 of the orders of 11 April 2019 be varied to provide that the husband’s notice of objections to the subpoenae to Y Lawyers and Q Company be adjourned to 12 June 2019 at 10.00am.
4. Other than the documents produced under subpoena to Y Lawyers and Q Company which are marked ‘privileged’ by the husband’s lawyers, the wife’s lawyers be at liberty to inspect all documents produced as from 5 June 2019.
…
6. The husband’s lawyers provide Ms C, the single expert, no later than Tuesday 4 June 2019, documents requested in paragraphs H, J, K, L and N of the letter from Ms C to the parties dated 10 May 2019 and any other documents and information requested in that letter which are in the husband’s possession, power or control as soon as practicable and pay the outstanding invoice to Ms C in the sum of $23,369.50. On the basis that the documents are supplied by the husband in accordance with this order THE COURT NOTES the husband and wife request Ms C to provide in writing the time it will take to provide a final report, on or before 4.00pm on 6 June 2019.

There is a dispute between the parties as to the inspection of documents. Many documents are claimed, by the husband, to have legal professional privilege attach to them. At the hearing of this matter on 12 June 2019, after submissions, Counsel for the husband announced that she no longer pressed for a declaration of privilege in respect of a number of documents in the list of documents jointly prepared by Counsel and Senior Counsel dated 12 June 2019 and headed “Documents Produced by Y Lawyers & Q Company Privileged Documents” (‘Privileged Documents List’). In doing so, the husband did not concede that the documents are not protected by legal professional privilege. As finally revised, those documents are numbered in the Privileged Documents List as follows: 1, 47, 106, 124, 169-172, 174-183, 187-193, 195-204, 206, 208, 210, 212-216, 219, 261, 265-266, 268-274, 277-282, 286, 293, 329, 334, 384, 433, 479-482, 486, 496, 499, 500, 503, 507-509, 511-514, 516, 523-525, 527-531, 575-578, 582-583, 585, 587, 593.
Likewise, the wife accepted the husband’s claim to legal professional privilege over a number of the documents in the Privileged Documents List. Those documents are numbered as follows: 10, 32-37, 62, 79-92, 113, 128-130, 185-186, 209, 217, 225-248, 275-276, 283-285, 288-292, 304-305, 341, 344-346, 351-366, 446-478, 483-485, 487-495, 497-498, 501-502, 504-506, 510, 515, 517-522, 532-559, 570, 601, 608-610, 613-614 and (k).
The remainder of the documents (being in number, approximately 400) are in issue. I proceed on the basis that, but for the documents that are no longer pressed and those that are conceded, the husband seeks a declaration over all of the documents in the Privileged Documents List.
The party who sought to be joined to the proceedings, the Second Respondent, has been the recipient of communications and is the other party to purported draft agreements in relation to which the husband claims legal professional privilege. That party has elected not to be heard on the issue.

Documents relied upon by the husband and wife

The husband’s objection to production is supported by affidavits filed by him on 31 May 2019 (as to subpoena issues only) and on 11 June 2019. It is for the husband to prove that the documents in dispute between the parties are the subject of a proper claim for legal professional privilege. The husband must discharge the onus of establishing the privilege by adducing evidence as to the circumstances in which each document was brought into existence and then communicated to others by reference to the nature of the document itself, and by argument and submission.
The wife relies upon as evidence:-
a)an affidavit affirmed on 28 May 2019 by Ms J;
b)some part of the trial affidavit of the husband sworn 26 April 2019. The paragraphs of that affidavit relied upon by the wife are paragraphs 12, 47 to 50, 64, 92, 94, 99, 100, 125,126, 139, 140, 166 to 184 inclusive, 191 to 196 inclusive, 209, 210, 212; and
c)an affidavit of Mr F sworn 29 May 2019 paragraphs 11 to 28 inclusive, 31 and 34.
Senior Counsel for the wife contends that:-
a)the affidavit evidence of the husband, on which the husband relies, is of no assistance to the Court to assess any basis for any claims for legal professional privilege; and
b)the husband’s trial affidavit sworn on 26 April 2019 puts in issue the very matters that are the subject of objection.

Legal Professional Privilege

The husband relies on legal professional privilege in respect of both legal advice and legal proceedings. In the absence of any equivalent of s 131A of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic), claims for production of documents are dealt with under common law.[1] The common law position is essentially the same as that provided for under the Evidence Act 1995 (Cth) (‘Evidence Act’).[2]
[1] Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, [59] - [63]; Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648, [32].
[2] X Corporation Pty Ltd & Jess and Anor [2016] FamCAFC 43, [22].
Section 118 of the Evidence Act provides that:-
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 of the Evidence Act provides that:-
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.
For the purpose of s 118 of the Evidence Act:-
confidential communication means a communication made in such circumstances that, when it was made:
(a) the person who made it; or
(b) the person to whom it was made;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it; or
(b) the person for whom it was prepared;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.[3]
[3]Evidence Act 1995 (Cth) s 117
In considering a claim for production of documents in respect of which legal professional privilege is claimed questions thus to be answered include whether each of the confidential communications or documents brought into existence were so created for the dominant purpose of giving or obtaining legal advice. Questions of purpose and intended use are questions of fact to be determined objectively having regard to all of the evidence. [4]
[4]AWB Ltd v Cole and Another (2006) 152 FCR 382, 110.
In AWB Ltd v Cole and Another (2006) 152 FCR 382 (‘AWB Ltd v Cole’), Young J said as to ‘the dominant purpose’ the following at [105]-[107], [110]:-
105. A ‘dominant purpose’ is one that predominates over other purposes; it is the prevailing or paramount purpose. In FCT v Pratt Holdings, on remitter from the Full Court, Kenny J said at 279-280 [30]:
‘(7) The dominant purpose is not the same as the "primary" or the "substantial" purpose: see Grant v Downs at CLR 678; ALR 580 per Barwick CJ. The "dominant" purpose may be described as the ruling, prevailing, paramount or most influential purpose: see Mitsubishi Electric at [10], citing Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at 416; [1996] HCA 34; 141 ALR 92 at 98 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ. The "dominant purpose" brings within the scope of the privilege a document brought into existence for the purpose of a client being provided with professional legal services notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time: Esso at 72 [58] per Gleeson CJ, Gaudron and Gummow JJ; Sparnon v Apand at FCR 328; ALR 740-1 per Branson J; and see GSA [26]-[28] per Holmes J.’
106. Kenny J also said at 478 [30] that where two purposes are of equal weight, neither is dominant in the relevant sense; hence a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose. I agree. The same conclusion follows if several purposes are of roughly similar weight, and it cannot be said that one prevails over the other. In Waugh v British Railways Board[1979] UKHL 2; [1980] AC 521 (‘Waugh’) at 543, Lord Edmund-Davies adopted the dominant purpose test propounded by Barwick CJ in Grant v Downs, and stated that the element of clear paramountcy should be the touchstone. It is not unusual for privilege claims to fail because the evidence does not establish the requisite dominant purpose: see, eg, Kennedy v Wallace[2004] FCA 332; (2004) 208 ALR 424 at 444 [73]; and FCT v Pratt Holdings at 285 [44]-[46] and 287 [56].
107. The authorities accept that an appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: see Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (‘Pratt Holdings’) at 366 [35] per Finn J. I would add that where the document is immediately communicated by its author to several other persons, including the author’s legal adviser, by a circular email (which is the case here), it is also important to ask what was the dominant purpose of that email communication.
…
110. In FCT v Pratt Holdings, Kenny J observed at 278 [30], correctly in my view, that the dominant purpose must be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions. Kenny J added that the evidence of the intention of the document’s maker, or of the person who authorised or procured it, is not necessarily conclusive of that purpose: see GSA Industries (Aust) Pty Ltd v Constable[2001] QSC 180; [2002] 2 Qd R 146 (‘GSA Industries’) at 153 [28] per Holmes J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd(1998) 81 FCR 526 at 545 per Goldberg J; Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1036 per Slade LJ; Hartogen Energy Ltd (in liq) v Australian Gas Light Company(1992) 36 FCR 557 at 568-569 per Gummow J; and Sparnon v Apand Pty Ltd(1996) 68 FCR 322 at 328 per Branson J. As these cases make clear, it may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that lead to the creation of the document and its subsequent communication.
A further related consideration is whether each of the documents was brought into existence for the dominant purpose of being used in connection with litigation that was reasonably in prospect? This is the second limb, as often referred to, of legal professional privilege.[5] It applies to confidential communications passing between a client, the client’s legal adviser and third parties for the dominant purpose of use in or in relation to litigation which is either pending or in contemplation. [6]
[5]AWB Ltd v Cole and Another (2006) 152 FCR 382, 420-421 [144]-[145].
[6] AWB Ltd v Cole and Another (2006) 152 FCR 382, [144].
As was said by Young J in AWB Ltd v Cole at [145]:-
The crucial difference between the first and second limbs of the privilege is that the second limb is not limited to communications whose dominant purpose is the giving or obtaining of legal advice. Communications lacking this advice element, such as communications between a solicitor and a prospective expert witness, will attract privilege where they occur in a litigation context: see JD Heydon, Cross on Evidence, vol 1, Butterworths, 1996, par 25235; SB McNicol, Law of Privilege, Law Book Company, 1992, at p 48; and SL Phipson, Law of Evidence, 16thedn, Sweet & Maxwell, 2005, at pars 23-81 and 23-82.
The privilege can be waived – expressly or impliedly. As described by the majority of the High Court in Mann v Carnell (1999) 201 CLR 1 (‘Mann’) at [28]:-
legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege.
The test adopted for waiver by the High Court in Mann,[7] is as follows:-
What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
[7] (1999) 201 CLR 1, [29].
The High Court, while rejecting a single broad test of fairness, accepted that fairness may be a relevant consideration, as too might be the purpose of the disclosure: [8]
Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency.
[8]Mann v Carnell (1999) 201 CLR 1, [34].
After reviewing the authorities following Mann, the Full Court of the Federal Court in Commissioner of Taxation v Rio Tinto Limited (2006) 151 FCR 341 stated at [52]:-
These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence.
The High Court confirmed in Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [45] that the judgment as to whether there is an inconsistency between the conduct of the privilege-holder and the confidentiality which the privilege is meant to protect is:-
…to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances…
and that “questions of waiver are matters of fact and degree”. [9]
[9]Osland v Secretary, Department of Justice (2008) 234 CLR 275, [49].
Relevantly, s 122 of the Evidence Act states:-
(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(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.
(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.
(4) The reference in paragraph (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:
(a) the substance of the evidence has been disclosed:
(i) in the course of making a confidential communication or preparing a confidential document; or
(ii) as a result of duress or deception; or
(iii) under compulsion of law; or
(iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or
(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).

Section 124 of the Evidence Act governs joint clients and loss of client legal privilege:-
124 Loss of client legal privilege: joint clients
(1) This section only applies to a civil proceeding in connection with which 2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter.
(2) This Division does not prevent one of those parties from adducing evidence of:
(a) a communication made by any one of them to the lawyer; or
(b) the contents of a confidential document prepared by or at the direction or request of any one of them;
in connection with that matter.

Consideration

No witness was cross-examined. Both parties relied on submissions and evidence and did not seek that the Court examine the documents in respect of which the privilege was claimed, it being well recognised that a court may examine a document in respect of which privilege is claimed in order to discover, on its face, whether the nature and content of the document supports the claim to legal professional privilege and “illuminte[s] the purpose for which they were brought into existence”.[10] Instead the claim is determined on the basis of the context and nature of the document as described by the husband in the evidence put by the husband in support of his claim.
[10]Grant v Downs (1976) 135 CLR 674, [689].
The husband, as the person claiming legal professional privilege, bore the onus to put on persuasive, and sufficient evidence to prove the nature of a confidential communication.[11]
[11]X Corporation Pty Ltd & Jess and Anor [2016] FamCAFC 43, [35].
In Barnes v Commissioner of Taxation (2007) 242 ALR 601 the Full Court of the Federal Court said at [18]:-
The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace(2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs(1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy v Wallace, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at 216 considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.
(emphasis in original)
The Full Court of the Family Court in X Corporation Pty Ltd & Jess and Anor [2016] FamCAFC 43, stated further at [38]:-
…Murphy J, with the agreement of May and Thackray JJ, in Strahan & Strahan & Commissioner of Taxation (2013) FLC 93-570 at 87,664 – 87,665. At 87,665 and 87,667 his Honour said:
“29. … For present purposes, the important point is that a party cannot rely on the potential examination of documents by the court to cure deficiencies in the description of documents alleged to be subject to privilege.”
When so many documents are in issue in the proceedings I cannot in a practically possible sense set out a specific reason for the decision of the Court in respect of each isolated document. I have set out above and applied, the relevant law, and made objective findings on the evidence before me as set out in the following paragraphs.

Subpoena to Q Company

Q Company are the accountants for the husband in both his personal capacity and on behalf of B Group and its associated entities. The husband asserts legal professional privilege in relation to communication, he asserts, involving the husband’s legal advisors and B Group. The basis for his claim of legal professional privilege in relation to the B Group documents is that such “documents were prepared for the dominant purpose of enabling [him] to obtain legal advice with respect to commercial matters and [his] business ventures”. [12]
[12] Affidavit of Mr El Rashidy sworn 10 June 2019, [8].
The husband does not depose to having inspected the B Group documents. Nor does he provide any evidence from the person/s who inspected the documents and created the description of the documents contained at paragraph seven of his affidavit affirmed 30 May 2019 and at paragraph 28 of his affidavit affirmed 11 June 2019. There is no evidence from any of the originators of the documents. Some are transactional matters; accounting invoices; and some involve “asset protection” work whilst engaging in mediation with the husband and wife and Y Lawyers.
The Court finds that the husband has not made out his claim for privilege in respect of each and every of the documents referred to in paragraph seven of his affidavit affirmed 30 May 2019 and being the documents produced pursuant to subpoena to Q Company filed 1 March 2019. This is essentially because these documents fall into the following categories:-
a)documents where the evidence does not satisfy the dominant purpose test, having regard to the poorly described nature and content of the document and the vague and formulaic evidence contained in the affidavit evidence;
b)documents in respect of which there is insufficient or no evidence as to the creation of the document; the confidentiality of the document; the person with whom the privilege vests; and/or to establish that the creation of the document or communication was for the dominant purpose of the provision of legal advice to the husband.

Subpoena to Y Lawyers

Y Lawyers have been and are the commercial lawyers retained for B Group and its associated entities and the husband personally for many years. Y Lawyers have also provided legal advice to Mr F, who sought joinder of the Second Respondent, and to the wife jointly with the husband. Indeed in February 2015, in an email sent from Mr CC to the wife, Mr CC of Y Lawyers stated:-
For as long as I am jointly invited to do so, I remain willing to act in the role of mediator for your direct discussions with Mr El Rashidy as I truly hope that we can achieve an amicable separation which deals with all personal and business assets.
By way of relevant background and in reference to many of the documents produced for and/or on behalf of B Group and its associated entities, of which the husband claims privilege in his personal capacity, the wife jointly held and continues to hold privilege in her personal capacity and that of officeholder and shareholder of B Group entities. Further:-
a)the wife remains an equal-share unit holder of the El-Rashidy Trust and until around 23 December 2015 (registered with ASIC on 30 December 2015), the wife was a director of B Group Property Holdings Pty Ltd. and B Group Pty Ltd. at which time she was unilaterally removed by the husband “as they were separated.” She had also prior thereto been removed as sole shareholder of R Pty Ltd.;
b)B Group Property Holdings Pty Ltd. and B Group Pty Ltd. were owned wholly by El Rashidy Investments Pty Ltd ATF El Rashidy Family Trust, of which the husband and wife were directors until 2015. It was at this time the husband changed the trustee to El Rashidy Family Holdings Pty Ltd, which is owned and operated wholly and solely by the husband;
c)on 14 May 2018 the wife received two letters from Mr BB, relationship director of Westpac Bank advising that El Rashidy Pty Ltd was in breach of covenants on a $14,000,000 loan facility of which Westpac purports that the wife is a guarantor;
d)on 8 January 2019 the husband provided to the wife a draft report by the Z Group pertaining to B Group’s financial performance and viability which was commissioned by Westpac on around 23 July 2018 and released on 9 November 2018. The wife had not been informed of this engagement or basis of the report or its existence prior to 8 January 2019. The wife’s solicitors requested disclosure in relation to the engagement of the Z Group and details of the documents provided for the purposes of the report and received no response from the husband; and
e)the husband unilaterally dealt with Mr F without obtaining the wife’s consent and without informing the wife prior and only disclosing documents and information in relation to his December 2018 dealings with Mr F some weeks later in January 2019, and his later January 2019 dealings with Mr F were notified to the wife in March 2019.
Mr F has now intervened in the proceeding and has indicated that he is claiming repayment of his alleged $2,250,000 advance or a 22.5% interest in B Group and its associated entities. His evidence at paragraph 26 of his affidavit sworn 29 May 2019 is:-
By reason of Company V Pty Ltd’s [the Second Respondent] exercise of the option, the B Group is owned as to 77.5 per cent by the Husband and the Wife, and as to 22.5 per cent by Company V Pty Ltd. Company V Pty Ltd’s ownership interest has not yet been registered.
The husband claims in his evidence to have now “severed any professional relationship with Mr F”.[13]
[13] Affidavit of Mr El Rashidy filed 26 April 2019, [212].
The husband and Mr F both hold relevant documents that the husband refuses to release to the wife citing legal professional privilege. These documents must be produced by the husband to the wife to ensure justice between the parties. Two of the three parties to this proceeding have access to documents which may determine the intervenor’s claim. This determination may affect the husband and wife’s respective property interests for the purpose of s.79 of the Act because the legitimacy or otherwise of this claim could have a significant impact on the valuation by Ms C, the single expert witness, of B Group and its associated entities.
The husband cannot rely on legal professional privilege in relation to any document concerning Mr F; the husband’s dealings with Mr F and/or the Second Respondent or any other potential financier or investor with B Group and its associated entities – the significantly central asset for adjustment between the husband and wife. Its value is an issue in dispute and there is currently a jointly appointed single expert Ms C of Company S preparing a valuation. The husband has been required by Court order and request of the wife and Ms C to provide relevant documents to Ms C, to enable her to proceed with her valuation of B Group. In relation to many of those documents the husband contends privilege should attach in seeking to exclude the wife from inspection of the documents. Inconsistently, he makes no claim for legal professional privilege with respect to Ms C’s examination of documents and communication. The parties statutorily are obligated to provide Ms C with all relevant documents and information.
As submitted by Senior Counsel, the husband has put in issue in his evidence his dealings with Mr F and the possible consequence on the value of B Group, B Group’s liquidity and solvency and its ability to generate finance given its obligations to the primary financier Westpac and Westpac’s demand and expectation that it will be repaid the sum of approximately $13.5 million in August 2019. Further, he has put in issue that Westpac were in discussions with a company known as “DD Company” to assign their debt of over $13,500,000. Westpac did not provide the wife with any information in relation to these negotiations despite a written request on 9 May 2019. The husband claims legal professional privilege with respect to these documents. That claim cannot be sustained. Additionally, the husband cannot, by an assertion of legal professional privilege, fail to provide the necessary full and frank disclosure required of him in these proceedings.
Privilege does not attach to transactional documents. Nor does it attach to documents described simply in the documents the subject of this application as “handwritten note”. This description is manifestly inadequate, as is many of the description of documents provided by the husband.
If, contrary to my view, privilege does attach to any of the claimed documents produced by Y Lawyers (save for those below), there has been a waiver of the privilege by the husband, either expressly or impliedly, in respect of them and as described in the paragraphs above.
There shall be otherwise a declaration of legal professional privilege with respect to the following documents:-
a)documents that pertain to the husband’s personal will and personal estate matters as detailed at numbers 2, 38-40 (save for any transactional documents), 44, 46, 48-51 on the Privileged Documents List;
b)documents numbered 93 and 94 on the Privileged Documents List which are sufficiently described;
c)documents 413 to 445 (save 433 which is not in issue) which relate to the purchase of DD Street, Suburb EE in the State of Victoria, save for those which are clearly “transactional documents” in a conveyance of land.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 5 July 2019.

Associate:

Date: 5 July 2019