EL RASHIDY & EL RASHIDY
[2020] FamCAFC 40
•27 February 2020
FAMILY COURT OF AUSTRALIA
| EL RASHIDY & EL RASHIDY | [2020] FamCAFC 40 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Legal and professional privilege – Waiver – Whether the primary judge was correct to overrule the husband’s claim for legal professional privilege over documents produced to the Court by his lawyers and accountants – Leave to appeal allowed – Inadequate reasons – Appeal allowed – Matter remitted for rehearing. FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly successful – Wife to pay the husband’s costs of the appeal in a fixed sum – Payment of costs delayed until final determination of the property settlement proceedings – Financial disparity of the parties – No order as to the costs of the second respondent. |
| Evidence Act 1995 (Cth) Pt 3.10, Div 1 Family Law Act 1975 (Cth) ss 94AA, 117(2A) Family Law Rules 2004 (Cth) Family Law Regulations 1984 (Cth) reg 15A |
| Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39 Barnes v Commissioner of Taxation (2007) 242 ALR 601; [2007] FCAFC 88 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Hodgson v Amcor Ltd; Amcor Ltd v Barnes(No. 2) [2011] VSC 204 Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 |
| APPELLANT: | Mr El Rashidy |
| FIRST RESPONDENT: | Ms El Rashidy |
| SECOND RESPONDENT: | AA Group Pty Ltd |
| FILE NUMBER: | MLC | 7974 | of | 2017 |
| APPEAL NUMBER: | SOA | 36 | of | 2019 |
| DATE DELIVERED: | 27 February 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Watts JJ |
| HEARING DATE: | 27 November 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 July 2019 |
| LOWER COURT MNC: | [2019] FamCA 402 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Strum QC with Ms Burt |
| SOLICITOR FOR THE APPELLANT: | Landers & Rodgers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr T North QC with Mr Dunlop |
SOLICITOR FOR THE FIRST RESPONDENT: | Nicholes Family Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Wodak |
| SOLICITOR FOR THE SECOND RESPONDENT: | McMasters Lo Andrawis |
Orders
The appellant be granted leave to appeal.
The appeal be allowed.
The orders made on 5 July 2019 be set aside.
The matter be remitted to the Family Court of Australia for rehearing.
The respondent pay the appellant’s costs fixed in the sum of $80,856.62, with the payment to be delayed until the final determination of the property settlement proceedings between the parties.
There be no order as to the costs of the second respondent.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 36 of 2019
File Number: MLC 7974 of 2017
| Mr El Rashidy |
Appellant
And
| Ms El Rashidy |
First Respondent
And
| AA Group Pty Ltd |
Second Respondent
REASONS FOR JUDGMENT
This appeal raises the issue of whether a judge of the Family Court of Australia was correct to overrule Mr El Rashidy’s (“the husband”) claim for legal professional privilege over documents produced to the Court by his lawyers and accountants.
The husband and Ms El Rashidy (“the wife”) are engaged in property settlement proceedings. A significant asset available for division is a group of companies that can be conveniently described as B Group, which are presently under the control of the husband. The wife was a director of some of these companies until late 2015 when she was removed. Two of these companies are the trustees of family trusts in which the wife has an interest as a beneficiary or unit holder. There was a dispute about the parties’ date of separation with the husband asserting that it was in 2015 and the wife saying that it was in 2017.
It is clear that the removal of the wife as a director was part of a remodelling of B Group. Y Lawyers and Q Company, a firm of accountants, acted for the husband at the time.
On 1 March 2019, the wife’s solicitors obtained the issue of subpoenas addressed to those two firms. Shortly after, on 8 March 2019, the husband filed a Notice of Objection to each subpoena. Many of the documents produced concerned AA Group Pty Ltd (“the second respondent”), which had acquired an interest in B Group and therefore was the recipient of communications and the other party to purported draft agreements over which the husband claims privilege. The second respondent did not lodge a Notice of Objection, notwithstanding it had an interest in some of the documents.
The husband’s Notices of Objection were heard on 12 June 2019. By that stage, the documents had been produced to the Court and the husband and the wife had filed and served affidavits as to the issue of legal professional privilege.
Importantly, the evidence before the Court contained a list of all the documents that had been produced to the Court by Y Lawyers and Q Company in response to the subpoenas (“the Privileged Documents List”). The Privileged Documents List identified each document produced by number and provided a short description of it. It contained 614 documents which had been produced by Y Lawyers and 74 documents which had been produced by Q Company.
This led to the parties reconsidering their approach to some of the documents. The husband withdrew his objection to some and the wife identified documents of which inspection was no longer required. Helpfully, a colour-coded version of the Privileged Documents List was prepared that identified these documents, with the primary judge then merely required to consider those that were not marked, which was approximately 400 documents.
The primary judge found that the husband “ha[d] not made out his claim for privilege in respect of each and every of the documents” provided by Q Company (at [33]).
As to the documents produced by Y Lawyers, her Honour found that the husband had not made out his claim for privilege over any of the documents in dispute or, alternatively, he had waived the privilege that he held over each of them (at [41]).
Notwithstanding that finding, the primary judge made the following declaration:
42.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.
The appeal was opposed by the wife. The second respondent neither opposed nor supported the appeal. The second respondent’s counsel made it clear that the second respondent did not oppose the inspection of the documents by the wife, some of which concerned its affairs and over which there was a possible claim for privilege by it.
Leave to appeal
The decision to permit the inspection of documents produced under subpoena is interlocutory in nature and leave to appeal is required (s 94AA of the Family Law Act 1975 (Cth) (“the Act”); reg 15A of the Family Law Regulations 1984 (Cth)).
Leave to appeal will be granted because we are satisfied that the primary judge’s decision is attended by sufficient doubt as to warrant its reconsideration and a substantial injustice would result if leave to appeal was refused.
The Appeal
Ground 1 was not pressed.
Were the primary judge’s reasons adequate?
The adequacy of the primary judge’s reasons for judgment is raised by aspects of Grounds 2, 5, 6, 7 and 9. As these contentions strike at the integrity of the trial process, it is necessary to consider them first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
The obligation to give reasons is well known. In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, the Full Court of the Family Court of Australia adopted the principles expounded in Sun Alliance Insurance Ltd v Massoud [1989] VR 8, saying:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the New South Wales Court of Appeal said:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
We turn then to her Honour’s reasons for judgment.
There was no dispute that the primary judge correctly identified the law as to legal professional privilege and its waiver. Although her Honour at times incorrectly relied on provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) which have no application to the production or inspection of documents, no error resulted as the principles are the same. The Evidence Act relates to the tender and admission of documents into evidence rather than inspection.
Her Honour then, again correctly, identified the approach to be taken to the evidence as follows:
27.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.
28.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) (Footnotes omitted)
The primary judge added the following:
30.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.
With respect to her Honour, this is where the difficulty with the adequacy of the reasons commences. Ultimately, it cannot be seen from the reasons for judgment why the claim for privilege failed as to any particular document or succeeded as to others. As we shall explain, because the primary judge expressed her findings globally but in the alternative, the reasons for the outcome as to each document cannot be identified.
This difficulty could have been avoided by each category identified by her Honour as a reason that a document was privileged being supplemented by a schedule of the documents that fell within it. An alternative, as the Full Court of the Federal Court of Australia in Barnes v Commissioner of Taxation (2007) 242 ALR 601 (“Barnes”) did, is for the judge to create a schedule identifying the reason or reasons why the claim for privilege over a particular document either succeeded or failed. Those reasons could then be discussed more widely in the reasons for judgment. In short, a separate set of reasons would not be required as to each document.
We accept that this would have required all 400 documents on the Privileged Documents List to have been placed in a schedule or identified, but the task is less onerous than it sounds. It would involve no more than reading the description of each document outlined on the Privileged Documents List and then assigning it a category or identifying the reason or reasons as to why it was or was not privileged. After all, the primary judge must have undertaken such a consideration to have determined the proceedings and it would have involved relatively little more to identify the outcome as to each document as discussed.
The Q Company documents
The basis for the husband’s claim for privilege as to these documents was that they “‘were prepared for the dominant purpose of enabling [him] to obtain legal advice with respect to commercial matters and [his] business ventures’” (at [31]).
Her Honour described the evidence called by the husband as to the documents produced by Q Company in the following terms:
32.The husband does not depose to having inspected the [Q Company] 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].
We pause here to observe that we do not see the relevance of the primary judge’s comment as to the husband’s failure to inspect the documents. Similarly, whilst evidence from the originators of the documents could in some cases be of assistance, it is not mandatory. Nothing that was said by the Full Court of the Federal Court of Australia in Barnes suggests that it was.
Further, all parties were content to work from the descriptions of the documents outlined on the Privileged Documents List prepared by the husband’s lawyers and we do not see what further evidence could have been given by them as to these descriptions other than those that had been provided.
We accept that documents produced by Q Company and described by the primary judge as “transactional matters”, “accounting invoices” and documents which “involve ‘asset protection’ work whilst engaging in mediation with the husband and wife” (at [32]), might not obviously be regarded as privileged. However, as her Honour did not identify what documents she regarded as falling within these categories, the parties do not know which documents fell into which group. It is impossible to determine whether any document was erroneously categorised. The parties’ right to appeal is therefore stymied as the reasons have not been expanded. As the authorities make clear, reasons for judgment must be sufficient so as to enable the parties to exercise their right of appeal.
Further, we would add that the mere fact that a document is a “transactional document” does not prevent the possibility of it being privileged. For example, a privileged note may have been written on it (see the discussion of bills of costs in Hodgson v Amcor Ltd; Amcor Ltd v Barnes(No. 2) [2011] VSC 204 per Vickery J at [62]–[63]).
The primary judge then continued:
33.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.
As can be seen, her Honour provided two categories into which the documents are said to fall. The second category is, however, a further set of categories, some in the alternative. All told, there are at least six categories into which the documents are said to fall. It is clear from the use of the phrases “insufficient or no evidence” and “and/or” that the documents cannot fall into all of the categories.
It is entirely unknown which documents fell into which categories. The effect is that the parties do not know the basis of the decision and the role of an appellate Court in reviewing error is completely negated.
The reasons for judgment are therefore inadequate.
We accept that many, if not all, of the Q Company documents were not well described and there was a sound basis for the primary judge to find that she was satisfied that the descriptions were too poor or vague to attract privilege. The difficulty is that this was just one of the categories into which documents were said to fall, seemingly in the alternative. The only inference that can be drawn is that the primary judge was satisfied that the description of some documents was adequate but the claim failed for other reasons – which was which remains unknown to the parties and to us.
The Y Lawyers documents
Y Lawyers had been the lawyers for the husband and his associated entities for many years. They had also provided legal advice to Mr F, the person behind the second respondent.
Her Honour said:
37.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.
38.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.
39.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.
40.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.
Again, the primary judge does not identify the basis on which each document fell within the different categories of documents that are not privileged.
As we have already explained, this, in this case, is a failure to give adequate reasons.
Her Honour then turned to the issue of waiver and said:
41.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.
Merely because a document concerns or refers to some entity other than the person claiming privilege, does not mean that the document cannot be privileged. Importantly, it cannot, of itself establish waiver.
Despite her Honour’s reference to express waiver, it was not an issue in the case.
In Mann v Carnell (1999) 201 CLR 1, Gleeson CJ, Gaudron, Gummow and Callinan JJ, described the principle of implied waiver in the following terms:
29.…This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. 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.
(Footnotes omitted)
The point for present purposes is that the primary judge needed to apply these principles to the facts found by her Honour and to demonstrate in her reasons for judgment why privilege had been waived as to each document or category of document. This process does not appear in her Honour’s reasons for judgment.
Finally, the primary judge’s findings demonstrate that none of the documents in dispute was found to be privileged. However, that is not what occurred. At [42], which we have already quoted above, her Honour found that a number of documents were in fact privileged and that that privilege had not been waived. The reasons do not explain why this is so and why they are not covered by the earlier findings.
This difficulty is compounded when the descriptions of some documents found to be privileged are compared with those that were not. For example, Document 2 of the Privileged Documents List was found to be privileged. It had the following description:
Handwritten file note by [a lawyer] dated 9 May 2016 in relation to matters regarding [B Group] … [Branches], Management, a personal Will and other matters…
On the other hand, Document 3 of the Privileged Documents List was found not to be privileged and was described as:
Handwritten file note dated 25 November 2015 titled “… [Mr El Rashidy]” and “2016 Plans” containing notes and comments, matters discussed at conference and advice given…
If the difference between these descriptions is the reference to a will, the significance of that reference eludes us. Certainly, the reasons for judgment do not explain it.
Document 23 of the Privileged Documents List refers to “estate advice” which is another way of describing advice as to a will but the claim for privilege over it was rejected.
On the other hand, Document 44, the description of which refers to “estate matters” was found to be privileged. However, Document 45, which also lists “estate matters” in its description was not found to be privileged.
If the point of distinction is that of waiver and not the reference to “estate advice” then it is not obvious from the description as to why the privilege as to some was waived but not as to others. The reasons do not explain the difference, if, in fact, this is the case.
In short, it cannot be discerned from the reasons for judgment why the husband was successful as to some documents and failed on others.
It follows that these aspects of Grounds 2, 5, 6, 7 and 9 have merit. The appeal must be allowed, the orders made on 5 July 2019 set aside and the husband’s Notices of Objection remitted for rehearing.
Although it is clear from the above reasons that we consider that other aspects of the grounds also have merit, it is neither necessary nor desirable to deal with them specifically as these matters will be recanvassed at the remitted rehearing (Kuru v New South Wales (2008) 236 CLR 1 at [12]; Boensch v Pascoe (2019) 94 ALJR 112 at [8]).
There is one matter, however, that we cannot let pass. Her Honour said:
38.… The parties statutorily are obligated to provide Ms [C] with all relevant documents and information.
39.… 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.
We do not agree that the obligation of full and frank disclosure, which arises under the Family Law Rules 2004 (Cth), abrogates the right to claim legal professional privilege.
The right to claim privilege over legal professional communications is a significant and fundamental common law right. In Baker v Campbell (1983) 153 CLR 52, Deane J said at 118 and 120:
… [T]he general and substantive principle underlying legal professional privilege is of fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen under the law in that it is a precondition of full and unreserved communication with his lawyer.
…
… Without it, there can be no assurance that those in need of independent legal advice to cope with the demands and intricacies of modern law will be able to obtain it without the risk of prejudice and damage by subsequent compulsory disclosure on the demand of any administrative officer with some general statutory authority to obtain information or seize documents.
Such rights are not abrogated by statute unless clear and unequivocal language is used. In Momcilovic v The Queen (2011) 245 CLR 1, French CJ said:
43.The principle of legality has been applied on many occasions by this Court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law. The range of rights and freedoms covered by the principle has frequently been qualified by the adjective “fundamental”. There are difficulties with that designation. It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power. Nevertheless, the principle is a powerful one. It protects, within constitutional limits, commonly accepted “rights” and “freedoms”. It applies to the rules of procedural fairness in the exercise of statutory powers. It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be read down so as to bring it within the limits of constitutional power. It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations.
(Footnotes omitted)
Heydon J provided a similar description at [444] and included legal professional privilege as an example of a fundamental common law right protected by the principle.
There is no section of the Act that carries any such clear and unequivocal intention to do away with a parties’ entitlement to claim legal professional privilege. A fortiori, rules as to disclosure, which are subordinate to the Act, cannot do so.
The same position applies at a trial when privileged material is sought to be tendered. Sections 117–126 of the Evidence Act create a similar regime to that which the common law applies to the production and inspection of documents.
Conclusion
It follows that the appeal will be allowed, the orders made on 5 July 2019 set aside and the matter remitted for rehearing.
Costs
If the event that the husband was successful, he sought payment of his costs in the sum of $80,856.62, assessed at scale.
The appeal has been wholly successful (s 117(2A)(g)). It is therefore appropriate that the wife should pay the husband’s costs but we would delay the payment of those costs until the final determination of the property settlement proceedings, having regard to the present disparity between the financial positions of the parties (s 117(2A)(a)).
There should be no order as to the costs of the second respondent.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Watts JJ) delivered on 27 February 2020.
Associate:
Date: 27 February 2020
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