FEOLI and DI BELLO - [2010] FCWA 67

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: FEOLI and DI BELLO [2010] FCWA 67

CORAM: CRISFORD J

HEARD: 21 JUNE 2010

DELIVERED : 1 JULY 2010

FILE NO/S: PTW 4106 of 2004

BETWEEN: MR FEOLI
Applicant
AND
MS DI BELLO
Respondent

Catchwords:

Evidence - legal professional privilege - waiver

Legislation:

Family Court Act 1997

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms A Payne
Respondent: Mr A Davies

Solicitors:

Applicant: Paynes
Respondent: O'Sullivan Davies

Case(s) referred to in judgment(s):

Alfasi and The Alfasi Group (2006) FLC 93-271
Argyle Brewery Pty Ltd v Darling Harbourside (1993) 120 ALR 537
Attorney-General for the Northern Territory v Maurice and Others (1986) 161 CLR 475
Australian Agricultural Company Ltd v AMP Life Ltd [2006] FCA 371
Gallo v Dawson (1990) 93 ALR 479
Macquarie Bank & B & B [2006] FamCA 1052
Mann v Carnell 201 CLR 1
McMahon & McMahon (1976) FLC 90-038
Sicpa North America Inc v Donaldson Enterprises Inc (1981) 430 A 2d 262.
Stamp and Stamp [2007] FamCA 420
Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425
Tormsen & Tormsen (1993) FLC 92-392

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1 The Court is asked to determine issues of legal professional privilege in the context of property proceedings which are to be heard by this Court not before 26 July 2010.

2The issue to be determined at that hearing is whether the wife should be granted an extension of time to seek a review of the Consent Orders made by a Registrar of the Family Court of Western Australia on 16 August 2004. Her delay in seeking such a review is from September 2004 to December 2008.
3The application for an extension of time within which to review the orders is brought pursuant to s 33(8) of the Family Court Act 1997.
4Before dealing with the issue of legal professional privilege it is useful to briefly consider the legal principles relevant to the extending of time for a review. Although I am not called up to determine that issue now, it is useful to consider it as background to the present application.
5In essence, leave should be granted if it permits justice to be done between the parties. In this respect, the Court refers to the following passage of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480:
“The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 AT 262.”

6However his Honour went on to further clarify this principle:
“This means…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FEOLI and DI BELLO

Details

AGLC: FEOLI and DI BELLO [2010] FCWA 67
Case: [2010] FCWA 67
Decision Date: 1 JULY 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the case of FEOLI and DI BELLO involves a dispute over the waiver of legal professional privilege claims. The matter revolved around the discovery of certain documents that were claimed to be protected by legal professional privilege. The respondents argued that the privilege had not been waived and sought to prevent the disclosure of the documents in question.

The central legal issue was whether the privilege had been waived by the conduct of the parties, specifically whether the respondents had inadvertently or intentionally waived the privilege by their actions during the litigation process. The court was required to determine the circumstances under which privilege might be considered waived and the extent to which such waiver could be inferred from the parties' conduct.

The court examined the principle of waiver by conduct, which holds that privilege may be lost if the party claiming privilege has acted in a manner inconsistent with maintaining the confidentiality of the communications. In this case, the court found that the respondents had engaged in conduct that implied a waiver of privilege, as they had disclosed privileged documents to third parties and made references to privileged communications in their pleadings. The court concluded that the privilege had indeed been waived due to the respondents' actions, allowing for the discovery of the documents in question. The court's decision underscored the importance of maintaining the confidentiality of privileged communications to uphold the integrity of the legal process.

Orders