Goldy and Goldy & Ors
[2011] FamCA 477
•23 June 2011
FAMILY COURT OF AUSTRALIA
| GOLDY & GOLDY AND ORS | [2011] FamCA 477 |
| FAMILY LAW - PRACTICE AND PROCEDURE – subpoenas – where the father’s solicitors have issued a subpoena directed to the office of the Department of Public Prosecution (‘DPP’) seeking production of documents – where the DPP has objected on the grounds of legal professional privilege or public interest immunity – where it was held that legal professional privilege can extend to communications with the DPP and also its staff – where the father has failed to establish on any basis upon which the significant right of legal professional privilege should be overridden – where the DPP’s objection to the production of documents upheld. FAMILY LAW - COSTS – issue of costs thrown away due to the adjournment of the trial – where the mother’s solicitor produced without consent the file from previous unrelated proceedings to the father’s solicitors – where the error of the mother’s solicitor formed the basis upon which the mother sought the adjournment – orders that the mother’s former solicitor pay the father and Independent Children’s Lawyer’s costs thrown away. |
| Family Law Act 1975 (Cth) s117 Family Law Rules 2004 rr 19.08 & 19.10 |
| Cassidy v Murray (1995) FLC 92-633 Mann v Carnell (1999) 201 CLR 1 Meltend Pty Ltd and Another v Restoration Clinics of Australia Pty Ltd and Others (1997) 75 FCR 511 Northern Territory of Australia v GPAO (1999) FLC 92-838 R v Buntingand Others (2002) 84 SASR 378 R v Tracey & Ors (No 2) [2005] SASC 356 Unsworth v Tristar Steering and Suspension Australia Ltd [2007] FCA 1081 Z (a solicitor) and Limousin [2010] FamCAFC 59 |
| APPLICANT: | Mr Goldy |
| RESPONDENT: | Ms Goldy |
| 1ST INTERVENOR: | Mr Y |
| 2ND INTERVENOR: | Mr Pallaras |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 4823 | of | 2008 |
| DATE DELIVERED: | 23 June 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 26 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Whitington, QC with Ms Hurley |
| SOLICITOR FOR THE APPLICANT: | Sykes Bidstrup |
| COUNSEL FOR THE RESPONDENT: | Ms Du Barry |
| SOLICITOR FOR THE RESPONDENT: | Christopher Ganzis & Co |
| COUNSEL FOR THE 1ST INTERVENOR: | Mr White |
| SOLICITOR FOR THE 1ST INTERVENOR: | Law Firm 1 |
| COUNSEL FOR THE 2ND INTERVENOR: | Mr Pearce, QC |
| SOLICITOR FOR THE 2ND INTERVENOR: | The Department of Public Prosecutions |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fuda Duncliffe |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
The Department of Public Prosecutions is released from any need to comply with the subpoena issued on 28 April 2011.
Within 28 days from today the wife’s former solicitor Mr Y pay:
(a) the husband’s costs thrown away; and
(b) the Independent Children’s Lawyer’s costs thrown away.
being the husband’s costs on an indemnity or solicitor/client basis and the Independent Children’s Lawyer’s costs on Legal Aid Scale PROVIDED THAT such costs are limited to the costs thrown away as a result of the adjournment of the trial on 10 March 2011 such costs to be agreed and in default of agreement as assessed by a Registrar.
IT IS NOTED that publication of this judgment under the pseudonym Goldy & Goldy and Ors 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
| Mr Goldy |
Applicant
And
| Ms Goldy |
Respondent
REASONS FOR JUDGMENT
Introduction
After hearing argument in relation to various interim issues, judgment was reserved on the two remaining interim issues, being the claim on behalf of the Director of Public Prosecutions (“DPP”) to privilege in opposition to the subpoena issued by the solicitors for the father to produce documents and the issue of costs of the adjournment of the trial which was originally listed to commence before me on 10 March 2011 and is now to be heard as a final hearing on 27 June 2011 for 10 days.
Hearing
At the hearing before me on 26 May 2011 (when the interim issues were heard) the father was represented by Mr Whitington, QC (with Ms Hurley), the mother by Ms Du Barry, the Independent Children’s Lawyer by Ms Fuda Duncliffe, Mr Pearce, QC appeared for the DPP and Mr White appeared as counsel for Mr Y (the former solicitor for the mother).
Background and brief relevant chronology
The proceedings in the Family Court of Australia commenced when the father, Mr Goldy, filed an initiating application in December 2008. The mother, Ms Goldy responded in February 2009 and filed a Notice of Child Abuse.
The proceedings concern the parenting orders to be made in relation to the three infant children of the marriage, M born in December 1998, S born in November 2008 and X born in July 2005.
The proceedings were referred to the Magellan Programme of the Family Court of Australia and have since been the subject of various interim and procedural orders. These orders included orders appointing an Independent Children’s Lawyer for the children and directions to prepare the matter for special listings of Magellan matters in March 2011.
On 10 March 2011 the matter was listed before me for the conclusion of the trial to commence. The applicant father was represented by Ms Hurley, the respondent mother by counsel, Ms Gray, and the Independent Children’s Lawyer by Ms Fuda Duncliffe.
On that day after hearing counsel, the trial was adjourned. It is now due to be heard on 27 June 2011 and for 10 days thereafter.
Brief reasons for granting the adjournment at the request of the mother were provided to the parties at that time.
On 28 April 2011 the solicitors for the father issued a subpoena directed to the Office of the Department of Public Prosecutions seeking the production of documents being:
“Documents relating to any third interview (that is any interview other than those conducted on 11 March 2009 and 2 July 2009) or proofing of the child [M] born [in] December 1998 pertaining to the charges of Unlawful Sexual Intercourse laid against [the father] in about March 2009 and dismissed in about October 2009.”
The DPP has filed a Notice of Objection to the Subpoena claiming that the documents are protected from disclosure by reason of legal professional privilege or public interest immunity.
The question of costs of the adjournment of the trial relates to the question of waiver of legal professional privilege by the mother of the documents contained in the mother’s former solicitor’s Motor Vehicle Accident file.
The mother was involved in a motor vehicle accident in November 2000, being a time prior to the separation of the mother and father in May 2008. Mr Y was the solicitor for the mother at the time of the motor vehicle accident proceedings. Mr Y was also the solicitor who instructed Ms Gray and was acting for the mother at the time of the attempted commencement of the trial on 10 March 2011.
Mr Y was instructed by the mother in relation to the Motor Vehicle Accident Personal Injuries claim between November 2002 and May 2006. He was later instructed to act for the mother in the Family Court proceedings in about September 2010.
Issues in relation to the mother’s health, and in particular her mental health, are directly relevant to the matters to be decided by this Court in relation to determining the best interests of the children.
In a letter dated 18 February 2011 from the father’s solicitor, Ms Bidstrup, to the then solicitor for the wife, Mr Y, a request was made as follows:
“Please make discovery of your client’s personal injuries file relating to the claim finalised in about 2006 arising from the accident in which she was involved in April 2000 …”
After a discussion between the solicitors, Mr Y replied to the father’s solicitors on 7 March 2011 in which he said, inter alia,
“We ask that you identify which part of that file you wish copied (to reduce any photocopy costs) or whether you wish to inspect the entire file.”
On 8 March 2011 the father’s solicitors sent a letter to Mr Y which included “in relation to the personal injuries file now available in your office, we require a complete copy of the file. …” Reference was then made in the letter to making arrangements to copy the file and concluded with a reference to “that time is of the essence”.
Following that correspondence on 8 March 2011 staff from the father’s solicitors’ office attended upon Mr Y’s office and collected the whole of the original personal injuries file.
Mr Y in sworn affidavit before the Court says:
“This office forwarded in error to the office of the solicitor for the husband a Motor Vehicle Accident file of the mother held by this office.” (Paragraph 3 of the affidavit filed by Mr Y on 15 March 2011).
The affidavit of Mr Y continued:
“4. That the file was forwarded without the instructions of the mother.
4.(sic) When the error was noted shortly after it was collected by the solicitor for the father, this office forwarded by facsimile to the solicitor for the father, a letter dated 8 March 2011, advising that the file was subject of legal professional privilege and requesting the file be returned immediately. Annexed hereto and marked with the letters “[Mr Y] 01” is a true copy of that letter to the solicitor for the father, dated 8 March 2011.
5.By way of email dated 8 March 2011 at 6.18 pm, the solicitor for the father advised the file had been copied and provided to counsel instructed to act on behalf of the father at the trial of this matter. The email letter advised that a copy of the correspondence from this office would be sent to counsel for the father. Annexed hereto and marked with the letters “[Mr Y] 02” is a true copy of that emailed letter from the solicitor for the father, dated 8 March 2011 at 6.18 pm.
6.A further email letter was received from the solicitor for the father dated 8 March 2011 at 6.49 pm, advising the solicitor had been unable to contact counsel, but that the letter from this office had been scanned and sent to counsel. Annexed hereto and marked with the letters “[Mr Y] 03” is a true copy of that email letter from the solicitor for the father, dated 8 March 2011 at 6.49 pm.
7.The original file was returned to this office by the solicitor for the father early on the morning of Wednesday 9 March 2011.
8.On 9 March 2011, a letter was forwarded by facsimile from this office to the office of the solicitor for the father, confirming receipt of the original file and requesting the copy provided to counsel also be returned immediately. Annexed hereto and marked with the letters “[Mr Y] 04” is a true copy of that letter to the solicitor for the father, dated 9 March 2011.”
In the affidavit of Mr Y filed on 26 May 2011 paragraph 5 includes:
“5.I refer to exhibit WAB-1 to Ms Bidstrup’s affidavit. I say that I caused the whole of the personal injuries file to be released while distracted by other matters, and without considering whether parts of the file might be privileged.”
The affidavit of Ms Bidstrup filed on 13 May 2011 confirms that at about 6.15 pm on 8 March 2011 she received a facsimile from Mr Y’s office which indicated that the file should not have been provided “as it is subject to professional legal privilege and we request the file be returned to this office immediately …” The letter also requested confirmation that the file had not been copied. Ms Bidstrup’s affidavit indicated that she attempted to contact Counsel, Ms Hurley, who had collected the file from her office at approximately 5.50 pm that afternoon, but was unable to contact her by telephone “presumably because her phone was ‘dead’”.
Ms Bidstrup’s affidavit indicates that by 8.30 am on 9 March 2011, Ms Hurley, Counsel for the father, advised the father’s solicitors that she had read the personal injuries file in its entirety. She had done this prior to receiving the emails which indicated the claim for privilege.
At the commencement of the trial on the next day, 10 March 2011, the legal representatives for the mother and father were unable to agree about the question of legal professional privilege attaching to the personal injuries Motor Vehicle Accident file.
On the morning of 10 March 2011, when the final trial in the matter was listed to commence before me, counsel for the mother indicated that the mother had not given Mr Y instructions to release the Motor Vehicle Accident/Personal Injuries file to the father’s solicitors and was not aware prior to that morning that this had happened.
The mother sought an adjournment of the trial in order for her to consider her ongoing legal representation. In the circumstances the trial was adjourned for the reasons which I gave on 10 March 2011.
On 26 May 2011 I heard argument in relation to the objections to the subpoena to produced documents served upon the DPP and about the issues of legal professional privilege in relation to Mr Y’s file for the wife’s Motor Vehicle Accident/Personal Injuries Claim.
It then became apparent that that file had been retained by Mr Y and had not been made available to her new solicitors or counsel. Some argument took place in relation to individual documents claimed to be the subject of privilege. It became clear that counsel for the mother did not have sufficient information about the documents. The mother’s former solicitor, Mr Y, had brought the Motor Vehicle Accident/Personal Injuries file to Court. The matter was therefore stood down to enable the mother’s current solicitors and counsel to inspect the file.
When the matter resumed after the morning adjournment, counsel indicated which documents the father’s solicitors were seeking to inspect and which documents for which the mother was claiming privilege. These matters resulted in agreement, save and except on the question of costs, including the question of costs of the adjournment of the original trial.
Issues
(a) Subpoena to DPP
Counsel appearing on behalf of the DPP claimed legal professional privilege in relation to the particular documents described in the subpoena.
Counsel for the father maintained that the claim of legal professional privilege could not extend to the Witness Support Officer assisting the DPP in the contemplated criminal proceedings against the father, which were later withdrawn. Counsel also placed emphasis upon the context of the transcript and video of other interviews of M conducted by the Police Department which had been released and were relied upon by the single expert, Dr W, in providing his opinion to this Court.
Mr Pearce, counsel for the DPP, confirmed that on 29 September 2009 notes were taken by the solicitor and the Witness Assistance Officer during another interview with M.
The provisions of the Commonwealth Evidence Act do not apply to the production of documents pursuant to subpoena. The common law rules apply. (Mann v Carnell (1999) 201 CLR 1 at 13 and Northern Territory of Australia v GPAO (1999) FLC 92-838.
Legal professional privilege can extend to communications with the DPP and staff employed within the DPP (R v Bunting and Others (2002) 84 SASR 378).
Counsel for the father relied upon the remarks made by Her Honour Justice Nyland of the Supreme Court of South Australia in R v Tracey & Ors (No 2) [2005] SASC 356 a September 2005 first instance decision of Nyland J in a case in which criminal proceedings were pending.
At paragraph 31 on page 6 Her Honour Justice Nyland said:
“The issue of proofing notes is not an easy matter to resolve. Martin J in R v Bunting & Ors dealt with a similar problem and said (at 401-402):
‘The fourth category of documents comprised notes made by DPP practitioners of communications with prosecution witnesses during proofing sessions. In my view those communications occurred in privileged circumstances: Trade Practices Commission v Sterling (at 246). Bearing in mind the undertaking given by the Director that in respect of information received in those privileged communications the Director has complied and will continue to comply with the duty of disclosure by waiving privilege, I declined to inspect the notes and uphold the Director’s claim.’
Consistent with those remarks, and in light of the assurance given in court by Ms Chapman, I declined to order that the documents to be produced for inspection either to me or to defence counsel” (Emphasis added)
Discussion and Findings in relation to DPP Subpoena
The submissions of Mr Pearce for the DPP confirmed that the third occasion when the child was interviewed at the DPP office had not resulted in a further statement being prepared for the prosecution which, of necessity, would have been provided to the defendant. The DPP did not proceed with the charges.
I accept the submissions on behalf of the DPP that the claim to legal professional privilege is based upon the notion of promoting and enhancing the administration of justice by facilitating frank and fearless communications and to facilitate such disclosure matters will remain confidential. Whilst there are exceptions to the principles and there are occasions when the principles may be overridden by other public policy considerations, great care should be exercised in determining those situations.
Whilst the transcripts of other interviews carried out by the police were made available to the father as part of the provision to the defendant in criminal proceedings, Mr Pearce informed the Court that these were the subject of sensitive materials notices and that both videos and transcripts should therefore not be released for other purposes.
Whilst it could be said that the notes taken by the staff of the DPP would be of interest to the parties in the Family Court proceedings, the father has failed to establish any basis upon which the significant right of legal professional privilege should be overridden. Simply because the father has had available to him the police transcripts and videos of other interviews carried out by police, does not require the DPP to release the privileged notes of the DPP.
I am satisfied that the notes of both the DPP solicitor and the Witness Support Officer of the interview with the child M, which took place at the offices of the DPP, are notes which are appropriately the subject of legal professional privilege.
For the reasons set out above I am satisfied that the DPP has appropriately claimed legal professional privilege in relation to the specified documents and that therefore the objection to the production of documents pursuant to the subpoena is upheld. The DPP is released from any need to comply with the subpoena issued on 28 April 2011.
(b)Waiver of privilege in relation to Motor Vehicle Accident/Personal Injuries file and costs of adjourned trial
After the Court noted that agreement had been reached on the disclosure of all documents sought by the father from the mother’s Personal Injuries/Motor Vehicle Accident file, the Court was still asked to hear the argument about privilege and whether waiver had taken place in order to place in the appropriate context the claims made by the parties for the costs thrown away when the hearing of the trial was adjourned in March 2011.
Counsel for the father maintained that “the entirety of the privilege which might have been claimed over the file was waived”. The father’s counsel sought an order that the wife “through the former solicitor” pay the costs of the father thrown away on a solicitor/client basis (or an indemnity basis) and that such costs be paid forthwith.
The Independent Children’s Lawyer relied upon a brief chronology of the history of the proceedings. In particular, she drew the Court’s attention to the fact that Justice Burr, as Magellan Judge in the Adelaide Registry, indicated in October 2010 that the final trial would be heard in the Magellan Special Listing in March 2011.
This was confirmed in November 2010. Orders made to prepare the matter for final hearing during the Magellan Special Lists which were to commence on 7 March 2011.
The Independent Children’s Lawyer was informed that the father was proposing to make an application to adjourn the trial set for March 2011. At the request of the father, subpoenas were issued very close to the original trial date.
It is apparent therefore that the Independent Children’s Lawyer was concerned that the parties had not complied promptly with the Court orders, nor attended to preparing the matter properly for the commencement of the trial on 10 March 2011.
The Independent Children’s Lawyer sought Counsel costs thrown away according to the Legal Aid Scale which for six days of a complex trial amounted to $8,518.40. Counsel for the Independent Children’s Lawyer was not able to specify against whom the order for costs was sought.
Counsel for Mr Y maintained that Mr Y should not be ordered to pay “these enormous costs claims” for a trial which was adjourned on the application of the mother without opposition by the father. Counsel for Mr Y maintained that the privilege issue could readily have been dealt with at the time of the trial.
Counsel maintains that Mr Y did not turn his mind to the question of privilege, but, very shortly after the file was obtained, Mr Y attempted to rectify the situation. He conceded that Mr Y did make a mistake. He maintains however that that mistake was not one which caused the trial to be adjourned. He maintained that Mr Y was not entirely to blame for the adjournment.
In relation to the question of the waiver of privilege, counsel for Mr Y emphasised that the privilege was a benefit of the client and that in this case there was not in fact any waiver of the privilege. He maintained that the lack of seriousness of the mistake of Mr Y was illustrated by the fact that the issues concerning privilege and the discovery of certain documents was resolved by counsel on the morning of 26 May 2011 when the file was available and after counsel for the parties set about appropriate negotiations during the adjournment of the hearing.
The mother supported the arguments in relation to costs and waiver presented on behalf of Mr Y.
Counsel for the father submitted to the Court that the Court should place no weight upon the submission directing the Court’s attention to the fact that the father did not oppose the adjournment of the trial. Counsel pointed out that the mother applied for the adjournment based upon the mother obtaining information only that day about the behaviour of her solicitor. He asserted that it would have been difficult to have resisted such an application in those circumstances.
Sections 117(1), (2) and (2A) states:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Rule 19.08 (4) of the Family Law Rules provide for orders to be made for costs and for compliance to take place prior to a case being finished.
Order for costs
(4)In making an order for costs, the court may set a time for payment of the costs that may be before the case is finished.
Rule 19.10 of the Family Law Rules provide:
Costs orders against lawyers
(1)A person may apply for an order under subrule (2) against a lawyer for costs thrown away during a case, for a reason including:
(a) the lawyer's failure to comply with these Rules or an order;
(b) the lawyer's failure to comply with a pre‑action procedure;
(c) the lawyer's improper or unreasonable conduct; and
(d) undue delay or default by the lawyer.
(2) The court may make an order, including an order that the lawyer:
(a) not charge the client for work specified in the order;
(b) repay money that the client has already paid towards those costs;
(c) repay to the client any costs that the client has been ordered to pay to another party;
(d) pay the costs of a party; or
(e) repay another person's costs found to be incurred or wasted.
The Full Court of the Family court of Australia in Cassidy v Murray (1995) FLC 92-633 after considering the earlier authorities concluded that the Court had power to make such an order and said at 82,366:
“It is only when there is something relevantly inappropriate about the incurring of those costs that it will be proper to attach liability to the solicitor. It is for that reason that the conduct of the solicitor is called into issue. It is not that the Court seeks to punish the solicitor for his or her conduct. Whether the appellant’s conduct in this case could constitute a contempt of court is not a matter upon which we express a view, but any question of punishment would more appropriately be addressed by proceedings of that nature.
In cases of this type, causation alone cannot be the test of whether a solicitor should be held liable for parties’ expenses. Only the solicitor’s improper conduct can provide a ground for the making of such an order against him or her. But the basis of the order is the concern that the innocent party should not bear costs which arise only out of the improper conduct of the solicitor, and not the improper conduct itself.”
The Full Court decision of Z (a solicitor) & Limousin [2010] FamCAFC 59 provides detailed consideration of the principles relating to a costs order being made against a solicitor. (In particular see paragraphs 45 to 62).
As previously indicated the High Court decisions of Mann v Carnell (Supra) and Northern Territory of Australia v GPAO (Supra) confirm that the Evidence Act 1995 (Cth) does not apply to the discovery and inspection process, but only to adducing evidence. Therefore the common law applies.
In the Federal Court case of Unsworth & Tristar Steering and Suspension Australia Ltd [2007] FCA 1081 (which referred to s122 of the Evidence Act) there is a useful discussion about mistaken or inadvertent disclosure.
Meltend Pty Ltd and Another v Restoration Clinics of Australia Pty Ltd and Others (1997) 75 FCR 511 at page 523 to 524 states:
“Although legal professional privilege is the privilege of the client which cannot be waived without the clients’ consent, I consider that there are circumstances where it is within the ostensible authority of a solicitor to waive privilege in respect of a document on the client’s behalf. Such ostensible authority exists in relation to the preparation of a case for trial and the conduct of the trial. In Great Atlantic Insurance Co v Home Insurance Co [1981]1 WLR 529; [1981] 2 All ER 485 at 539; 492-493 Templeman LJ said:
‘The general principle is that ‘a solicitor is the agent of his client in all matters that may reasonably be expected to arise for decision in the cause’: per Denning LJ in Griffiths v Evans [1953] 1 WLR 1424 at 1431; [1953] 2 All ER 1365 at 1371.’
Lord Denning restated this principle in a dissenting judgment in Causton v Mann Egerton (Johnsons) Ltd [1974] 1 WLR 162; [1974] 1 All ER 453 at 167; 457-458 but the majority of the Court of Appeal expressed no view on the authority of a solicitor to waive privilege as they found there had been no agreement which could amount to a waiver. In this case it is the solicitors who prepared the list of documents and, according to the evidence, made the decision as to which documents were privileged from production and which documents were not. The evidence does not disclose that they sought their clients’ instructions as to the categories and schedules they had prepared but I am prepared to assume that they had done so and that their clients had left the final decision to the solicitors. In other words, the clients left it to the solicitors to determine, and gave them the authority to determine, whether or not any particular document should be subject to a claim for privilege.
If I am wrong that there was an express waiver I consider that a waiver of privilege should be imputed by operation of law. Recent cases have shown that waiver will be imputed where the person entitled to claim the privilege has performed some act which renders it unfair to another party that the privilege be maintained: Attorney-General (NT) v Maurice; Goldberg v Ng. The cases which imputed waiver has been found have involved a use of the relevant documents which has involved a partial or limited disclosure of the contents of the documents: Attorney-General (NT) v Maurice; Goldberg v Ng. However the principle does not appear to be limited to such cases.
It is true that the judgments in Attorney-General (NT) v Maurice were predicated upon a consideration whether a partial or limited use or disclosure of privileged material made it unfair not to disclose the balance of the material. However in Goldberg v Ng (at 95 Deane), Dawson and Gaudron JJ said:
‘The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether ‘fairness requires that his privilege shall cease whether he intended that result or not’. That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular person, materials or purposes.’
It appears from this passage that their Honours were leaving open the categories of imputed waiver yet recognising that imputed waiver is underpinned by an act or omission of the beneficiary of the privilege. Although their Honours said that ‘ordinarily’ that act or omission will involve a limited actual or purported disclosure they did not appear to be restricting themselves to a situation of a party intending to disclose to a limited range of persons such as in the case before them.”
At page 526 and 527 it states:
“…In the absence of an obvious mistake apparent to an inspecting party and fraud I consider that the appropriate principle to apply is that once inspection has been allowed of a document listed in that part of an affidavit or list in which privilege from inspection is not claimed, any privilege attaching to that document is to be regarded as waived by being included in that part of the affidavit or list and by being made available for inspection.”
The wife did not authorise Mr Y to deliver up the entire Motor Vehicle Accident/Personal Injuries file to the husband’s legal representatives. She did not waive her right to claim legal professional privilege. The unchallenged evidence of Mr Y is that he made a mistake. The evidence does not support a finding of imputed waiver of the privilege.
The particular facts of this matter establish that it is not appropriate to find the wife’s right to claim privilege was waived by her solicitor.
The error or mistake made by Mr Y brought about the situation which made it appropriate for the wife to seek other legal representation and advice. This was the basis for the adjournment of the trial.
Conclusion
Mr Y’s failure to consider the wife’s claim for legal professional privilege before handing over the file was a serious mistake. Mr Y should therefore pay the father’s costs thrown away on an indemnity basis. In the special unusual circumstances of this case Mr Y should also pay the Independent Children’s Lawyer’s counsel fees thrown away at the Legal Aid Scale claimed.
The costs claimed by the husband were in excess of $41,000.
The Court has not been given sufficient information to decide whether all of these costs can be categorised as “costs thrown away”, wasted or lost because the trial was adjourned.
The husband has not been successful on the question of waiver of legal professional privilege.
The costs to be paid by Mr Y are limited to (1) costs on an indemnity basis for the husband and, (2) the Independent Children’s Lawyer’s costs on Legal Aid Scale, being, both costs thrown away or wasted as a result of the adjournment of the trial on 10 March 2011.
Regrettably if the costs cannot be agreed it will be necessary for such costs to be determined by a Registrar.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 23 June 2011.
Associate:
Date: 23 June 2011
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