Fowles and Fowles (No 3)

[2019] FamCA 1040

FAMILY COURT OF AUSTRALIA

FOWLES & FOWLES (NO. 3) [2019] FamCA 1040

FAMILY LAW – PRACTICE AND PROCEDURE – claim of legal professional privilege where it is asserted that person entitled to privilege had waved such privilege by acting inconsistently with such privilege – where husband not found to have acted inconsistently with maintain privilege.

Evidence Act 1995 (Cth)

APPLICANT: Ms Fowles

RESPONDENT: Mr Fowles

FILE NUMBER: MLC 8587 of 2015

DATE DELIVERED: 7 November 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sheales

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr North SC

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

1. The Husband is not required to produce he email dated on or about 27 March 2019.

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 Fowles & Fowles 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 8587 of 2015

MS FOWLES

Applicant

And

MR FOWLES

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The wife calls for production of a document which is referred to in an affidavit prepared by the solicitors for EE Company of FF State in relation to a costs application.  At page 4 of annexure H-6 there is in the middle of the page an entry for 27 March 2019, and that is a bill which charges $55 for the following item:

   Perusal of letter via email from Taussig Cherrie Fildes advising our client should become involved in the proceedings.

2. Taussig Cherrie Fildes are the solicitors for the husband. There is no dispute in submission made to me that the proceedings are the proceedings which are currently before the Court and in which I make this ruling. Mr Fowles claims that the document is privileged. It is available to be produced, but he resists production on the basis of legal professional privilege as articulated in s 119 of the Evidence Act 1995 (Cth). Section 119 of the Evidence Act provides as follows:

   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.

3. Mr North QC appears for the husband.  He submits that the communication, which was the letter sent by the husband’s solicitors to the solicitors for EE Company of FF State, is a confidential communication, arising circumstances where the wife sought to join EE Company of FF State in its capacity of trustee of the Fowles Family Trust and the 2017 DD Trust.  He submits that the correspondence was for the dominant purpose of Mr Fowles being provided with professional legal services relating to an Australian or overseas proceedings, including this proceeding before the Court, or an anticipated or pending Australian or overseas proceeding in which Mr Fowles is a party. 

4. On the other hand, Mr Sheales for the wife contends that, when the husband’s solicitors sent the letter to the trustee’s solicitors, the husband acted inconsistently with the preservation of a confidential communication within the meaning of s 122(2) of the Evidence Act. Subject to s 122(5), s 112(2) does not prevent the adducing of evidence if the client or party concerned (here, the husband) has acted in a way that is inconsistent with him objecting to the adducing of the evidence because it would result in a disclosure of the kind referred to in s 119.

5. What Mr Sheales is, in effect, saying is that the correspondence which necessarily passed from Taussig Cherrie to the solicitors for EE Company of FF State was inconsistent with the husband maintaining confidentiality of that information. With respect, that does not make sense when one looks at s 119. In order to render the protection offered by s 119 unavailable to the husband in the circumstances of this case by reliance on s 112(2), the husband would have had to have disclosed the contents of the communication to someone else other than the person to whom it was addressed. In this case I find that he has not done so. What he did was for the dominant purpose of obtaining legal advice.

6. There was some submission in relation to common interest privilege which is now statutorily enshrined in s 112(5). It is not necessary for me to rule on that because the answer lies in s 119 and not in s 112. In any event, Mr North does not press reliance on s 112(5). In passing, I have reservations about the identically of the interest that would be necessary to sustain a claim of common interest privilege where one of the trusts for whom the entity is trustee is a discretionary trust in which the wife is a beneficiary and has a right to be considered. But, as I said, that is not a matter on which I rule. I find that the letter is subject to legal professional privilege under s 119 and I do not required it to be produced.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 November 2019.

Associate: 

Date: 5 February 2020