Goldy and Goldy (No 3)

[2011] FamCA 518

FAMILY COURT OF AUSTRALIA

GOLDY & GOLDY (NO 3) [2011] FamCA 518

FAMILY LAW - LEGAL PRACTITIONERS – application by the mother seeking that the father’s counsel be restrained from acting – where counsel has read material which would be considered the subject of legal professional privilege – question of whether privilege exists – whether documents may have been produced for improper or illegal purposes – where the Court was satisfied that a prima facie case of an improper purpose has been established – application dismissed.

Family Law Act 1975 (Cth)
Motor Vehicles Act 1959 (SA)

Commissioner Australian Federal Police & Anor v Propend Finance Pty Ltd & Ors (1997) 188 CLR 501

APPLICANT: Ms Goldy

RESPONDENT: Mr Goldy

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 4823 of 2008

DATE DELIVERED: 24 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 24 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Du Barry

SOLICITOR FOR THE APPLICANT: Christopher Ganzis & Co

COUNSEL FOR THE RESPONDENT: Mr Whitington QC
(with Ms Hurley)

SOLICITOR FOR THE RESPONDENT: Sykes Bidstrup

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fuda Duncliffe

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. The Case Application filed by the mother on 23 June 2011 is dismissed.

2. The matter remains listed before the Honourable Justice Dawe for the two weeks commencing on Monday 27 June 2011.

3. The question of costs is reserved generally.

IT IS NOTED that publication of this judgment under the pseudonym Goldy & Goldy (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 4823 of 2008

Ms Goldy

Applicant

And

Mr Goldy

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I give brief reasons for my decision and make the appropriate orders.

2. The question of the ongoing representation of the father by present counsel, Ms Hurley, is the subject of the application which is before me. There is the admission that Counsel for the father, Ms Hurley, has read all of the Motor Vehicle Accident Personal Injuries Claim file of the mother’s former solicitors, including material which would otherwise be considered the subject of legal professional privilege.  I have already delivered my reasons in relation to the issue of waiver and found that the mother had not waived her right to make that claim for legal professional privilege. 

3. However, this morning, the issue is raised about whether that privilege indeed exists based on the background to the matter and the claim made now by the father (based upon medical records, insurance claims and reports) that the privilege in fact did not exist because the claim for privilege fails initially on the basis that it could be described as correspondence and documents created for an illegal purpose or an improper purpose and therefore, the issues of fairness require that the privilege be found not to exist. 

4. Counsel for the father have referred me to the High Court decision of Commissioner Australian Federal Police & Anor v Propend Finance Pty Ltd& Ors (1997) 188 CLR 501 and the provisions of the relevant Motor Vehicles Act 1959 (SA).

5. In relation to the issue of illegality, I accept for the purposes of these brief reasons that the material before the Court as part of the annexure I received this morning indicates that prior to the motor vehicle accident in 2000, the mother was certainly the subject of considerable assessment in relation to her psychological and psychiatric condition.  Some of the earlier mental health records refer to a bipolar disorder and other psychosis and psychiatric conditions, together with references in the medical records to a back injury or medical difficulty of spina bifida and back pain. 

6. The details are set out in the documents referred to by the father’s counsel.

7. On the material before the Court it appears that the claim made by the mother in relation to the motor vehicle accident may be described as not full and frank in accordance with the statutory requirements.  I am satisfied that a prima facie case of improper behaviour or illegality has been established by the father.  This calls into question the basis upon which the legal professional privilege could be claimed. 

8. The authorities clearly indicate that the claim for a privilege cannot be maintained if there is a prima facie case of improper purpose established in relation to the communications between the client and the lawyer. 

9. I am satisfied that a prima facie case of an improper purpose has been established.  That does not mean that after hearing all of the evidence and testing of the evidence that that conclusion will be drawn.  However, the prima facie allows the material for which privilege was claimed to be now made available to the father’s solicitors. 

10. I do that also on the basis of the provisions which require me to consider the question of fairness to the parties in these proceedings.  This is a matter in which the past conduct of the parties and in particular their mental and psychological health and their capacity to provide parenting for the children is a significant issue. 

11. Therefore, taking into account the common law provisions as they apply in relation to the question of privilege, I am satisfied that the protection which is normally given to these documents does not apply in this case. 

12. That would therefore indicate that the material which Ms Hurley has read is not the subject of privilege and is therefore not a factor which would prevent her from continuing to act in this matter. 

13. In making these remarks, I accept the submissions on behalf of the Independent Children’s Lawyer that this whole process could have been overcome if other counsel had been briefed, but it remains, of course, the right of the father to choose his counsel.

14. By taking those matters into account, I dismiss the application of the mother in relation to the discharge of Ms Hurley.  Counsel has indicated that the application in relation to the father’s solicitors was not maintained. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 24 June 2011.

Associate: 

Date:  6 July 2011