Fowles and Fowles (No 3)

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…