Fowles & Fowles (No 6) - [2018] FamCA 1181

FAMILY COURT OF AUSTRALIA

FOWLES & FOWLES (NO. 6)

[2018] FamCA 1181

Application to compel production of documents - legal professional privilege – agency – common interest privilege – documents not to be produced

Evidence Act 1995 (Cth)

Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405
Bank of Nova Scotia v Hellenic Mutual War Risks Assn (Bermuda) Ltd (The Good Luck) [1992] 2 Lloyd’s Rep 540
Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689
Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 223

Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601; [1996] NSWSC 259

Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 420
Inlon Pty Ltd v Celli SPA [2017] NSWCA 569
International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644
Kang v Kwan [2001] NSWSC 698
Lee v South West Thames Regional Health Authority [1985] 1 WLR 845
Mann v Carnell [1999] 201 CLR 01; [1999] HCA 66
Marshall v Prescott [2013] NSWCA 152
Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 279
Rank Film Distributors Ltd v ENT Ltd (1994) Supreme Court of Tasmania, Crawford J, 5 November 1994, unreported
Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd (2006) NSWSC 234
Southern Cross Airlines Holdings Ltd (in liq) v Arthur Anderson & Co (a firm) (1998) 84 FCR 472
Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd (2006) 16 VR 1; [2006] VSCA 201
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347

Cross on Evidence, Heydon, J D, 2017, 11^th Edition

APPLICANT:

MS FOWLES

RESPONDENT:

MR FOWLES

INDEPENDENT CHILDREN’S LAWYER:

MARY LONERGAN

FILE NUMBER:

MLC

8587

2015

DATE DELIVERED:

25 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

26 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sheales with Dr Smith

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr North SC with Mr Salamanca

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

Orders

The application of the wife for production of documents by the husband, being copies of all communications between the husband and J Lawyers (in their capacity as solicitors for Mr G Fowles) in relation to the claim by Mr G Fowles regarding the alleged “loan agreement” between H Inc and the husband dated 21 November 2000, be and is hereby refused.
Exhibit “H5” be removed from the Court file and handed to the solicitors for the husband at the conclusion of the proceeding.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.

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Details

Case: [2018] FamCA 1181
Decision Date: 25 June 2018

CaseChat Overview and Summary

In *Fowles & Fowles (No 6)*, the wife sought to compel the husband to produce documents comprising communications between himself and his solicitors, J Lawyers, concerning a claim by the husband regarding an alleged loan agreement. The application was heard by Bennett J.

The central legal issue before the Court was whether these communications were protected by legal professional privilege, and specifically, whether common interest privilege or agency principles could override such privilege.

Bennett J reasoned that the communications in question were made between the husband and his solicitors in their professional capacity and were therefore subject to legal professional privilege. The Court found that the wife had not established a basis to overcome this privilege, nor had she demonstrated that the circumstances warranted the disclosure of the documents under principles of common interest or agency. Consequently, the application for production of the documents was refused.

The Court ordered that the wife's application for production of the specified documents be refused. Additionally, Exhibit "H5" was to be removed from the Court file and returned to the husband's solicitors at the conclusion of the proceeding.

Orders

Orders of the court

Orders

1. The application of the wife for production of documents by the husband, being copies of all communications between the husband and J Lawyers (in their capacity as solicitors for Mr G Fowles) in relation to the claim by Mr G Fowles regarding the alleged “loan agreement” between H Inc and the husband dated 21 November 2000, be and is hereby refused.

2. Exhibit “H5” be removed from the Court file and handed to the solicitors for the husband at the conclusion of the proceeding.

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)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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