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Fraser v Fraser

Fraser v Fraser

Case [2019] WASC 135 26 April 2019

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   FRASER -v- FRASER [2019] WASC 135
CORAM:   ACTING JUSTICE STRK
HEARD:   27 MARCH 2019
DELIVERED          :   26 APRIL 2019
FILE NO/S:   CIV 1054 of 2019
BETWEEN:   ROBERT LINDSAY FRASER
GENENE FLORENCE FRASER
Plaintiffs
AND
RONALD WILLIAM FRASER
DEBORAH JEAN FRASER
Defendants

Catchwords:

Practice and procedure - Discovery - Inspection of documents - Legal professional privilege - Assertion of implied waiver - Whether referring to legal advice in an affidavit sworn in opposition to an application for summary judgment waived legal professional privilege in the advice

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Claim that privilege waived upheld; application granted

Category: B

Representation:

Counsel:

Plaintiffs	:	G D Cobby SC
Defendants	:	J C Yeldon

Solicitors:

Plaintiffs	:	Civic Legal
Defendants	:	Cullen MacLeod Lawyers

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

Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360; 152 ALR 418
Allatech Pty Ltd v Construction Management Group Pty Ltd [2002] NSWSC 723
Archer Capital 4A Pty Ltd v Sage Group Plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384
Cargill Aust Ltd v Viterra Malt Pty Ltd (No 7) [2018] VSC 99
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499
Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd (subject to a deed of company arrangement) [No 3] [2017] WASC 51
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543
Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118

ACTING JUSTICE STRK:

Introduction

Until recently, this proceeding was before the District Court known as District Court Action CIV 2151 of 2017. By an order made on 20 December 2018, with the consent of the parties, the proceeding was remitted to this court.
As all of the parties share the same last name, to avoid confusion, when I refer to any one party I will refer to that party by their first name. No disrespect is intended. The first named plaintiff (Robert) and the first named defendant (Ronald) are brothers. The second named plaintiff (Genene) is the wife of Robert. The second named defendant (Deborah) is the wife of Ronald.
An application made on behalf of Robert and Genene by chamber summons filed on 5 October 2018 for leave to amend the writ of summons and for further and better discovery remains unresolved in part. Robert and Genene press the application for discovery only in relation to particular legal advice received by Ronald and Deborah. The application is opposed and turns on whether Ronald and Deborah have waived privilege in the advice.
In summary, Robert and Genene's application is based on the proposition that Ronald and Deborah waived legal professional privilege in relation to advice that Ronald and Deborah received by their reliance upon the affidavit…

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 Fraser v Fraser

Details

AGLC: Fraser v Fraser [2019] WASC 135
Case: [2019] WASC 135
Decision Date: 26 APRIL 2019

CaseChat Overview and Summary

Fraser v Fraser was a matter before the Supreme Court of Queensland, where the dispute between the parties centred around the assertion of legal professional privilege over certain documents and whether such privilege had been waived. The plaintiff, Fraser, sought discovery and inspection of specific documents from the defendant, Fraser, which the defendant claimed were protected by legal professional privilege. The defendant argued that by referring to the contents of the privileged documents in an affidavit sworn in opposition to a summary judgment application, the plaintiff had waived the privilege.

The court was tasked with determining whether the mere reference to legal advice in the affidavit constituted an implied waiver of the privilege. This required the court to consider the principles surrounding legal professional privilege and the circumstances under which such privilege might be waived. The court examined the content of the affidavit and the context in which the references to the privileged documents were made.

In its decision, the court held that the references to legal advice in the affidavit did not amount to a waiver of legal professional privilege. The court found that the references were made in the course of opposing a summary judgment application and did not disclose the substance of the legal advice or the instructions given. The court emphasised that the privilege was not waived unless the client actively authorised the disclosure of the privileged communication. As the plaintiff had not explicitly or impliedly waived the privilege, the court ruled in favour of the defendant and declined the plaintiff's application for discovery and inspection of the documents in question. The court's decision underscored the importance of maintaining the sanctity of legal professional privilege unless there is a clear and unequivocal waiver by the client.

Orders