Goldy and Goldy & Ors - [2011] FamCA 477

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

1^ST INTERVENOR:

Mr Y

2^ND INTERVENOR:

Mr Pallaras

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

4823

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 1^ST INTERVENOR:

Mr White

SOLICITOR FOR THE 1^ST INTERVENOR:

Law Firm 1

COUNSEL FOR THE 2^ND INTERVENOR:

Mr Pearce, QC

SOLICITOR FOR THE 2^ND 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…

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: [2011] FamCA 477
Decision Date: 23 June 2011

CaseChat Overview and Summary

In the matter of *Goldy and Goldy & Ors*, Dawe J considered a dispute concerning the production of documents and the award of costs. The father had issued a subpoena to the Department of Public Prosecution (DPP) seeking certain documents. The DPP objected to this request, asserting legal professional privilege and public interest immunity. Additionally, the court addressed costs thrown away due to an adjournment of the trial, which arose from the mother's former solicitor producing a file from previous unrelated proceedings to the father's solicitors without consent.

The primary legal issue before the court was whether the DPP's objection to the subpoena should be upheld, specifically concerning the applicability of legal professional privilege to communications with the DPP and its staff. The secondary issue involved determining responsibility for the costs incurred due to the trial adjournment and the appropriate basis for assessing those costs.

Dawe J reasoned that legal professional privilege can indeed extend to communications with the DPP and its personnel. The court found that the father had not established any grounds upon which this significant right of privilege should be overridden. Consequently, the DPP's objection to the production of the documents was upheld. Regarding the costs, the court determined that the mother's former solicitor's error in producing the unrelated file was the basis for the mother's request for an adjournment.

Accordingly, the Department of Public Prosecutions was released from its obligation to comply with the subpoena. Furthermore, the court ordered that the mother's former solicitor pay the husband's and the Independent Children's Lawyer's costs thrown away as a result of the adjournment. These costs were to be assessed on an indemnity or solicitor/client basis for the husband and on the Legal Aid Scale for the Independent Children's Lawyer, with the quantum to be agreed or assessed by a Registrar in default of agreement.

Orders

Orders of the court

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.

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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