Gonsalves & Gonsalves
[2023] FedCFamC1F 146
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gonsalves & Gonsalves [2023] FedCFamC1F 146
File number(s): SYC 1702 of 2019 Judgment of: CHRISTIE J Date of judgment: 13 March 2023 Catchwords: FAMILY LAW – PRIVILEGE – Where the husband sought to adduce evidence from the wife’s former solicitor – Where the wife asserted legal professional privilege – Where the wife impliedly waived privilege due to her conduct. Legislation: Evidence Act 1995 (Cth) ss 117, 118, 119, 121, 122, 126
Family Law Act 1975 (Cth) s 90D
Cases cited: Mann v Carnell (1999) 201 CLR 1
Osland v Secretary of the Department of Justice (2008) 234 CLR 275
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 13 March 2023 Place: Sydney Counsel for the Applicant: Ms Clarke Solicitor for the Applicant: J S Pinto & Co Counsel for the Respondent: Ms Ingenito Solicitor for the Respondent: Bazaliza Lawyers ORDERS
SYC 1702 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GONSALVES
Applicant
AND: MR GONSALVES
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
13 MARCH 2023
THE COURT ORDERS THAT:
1.Leave is granted to the respondent to read and rely on the affidavit of Ms Beller filed 9 March 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This matter relates to Ms Gonsalves, the wife, and Mr Gonsalves, the husband, concerning division of the parties’ property following divorce.
The wife seeks a declaration that a Financial Agreement be upheld and binding on the parties, requiring reference to collateral documents in order to construe the clauses that related to superannuation.
The husband seeks a declaration that there was complete performance of the agreement and that the application be dismissed.
BACKGROUND
The parties married and commenced cohabitation in 1998. There are two children of the marriage: Mr C born 1999 and Mr D born 2004. The parties separated in November 2013 and remained living under the same roof until September 2014. Their divorce was made final on 17 March 2016.
On 8 June 2016 the parties entered into a Financial Agreement under s 90D of the Family Law Act 1975 (Cth) (“the Act”). On 19 March 2019 the wife commenced proceedings in the Federal Circuit Court (as it then was) in respect of the final orders application that comes before this Court.
An issue has arisen in the context of these final order proceedings. The husband seeks leave to read and rely on an affidavit of Ms Beller. Ms Beller was the wife’s solicitor at the time of the financial agreement. Ms Beller had been joined to the proceedings by the wife. The application against Ms Beller and her employer was settled by deed and the application discontinued. When proceedings were commenced against Ms Beller and her employer, the wife sought damages arising out of alleged breaches in duty owed by solicitor to client. The husband was a party to the proceedings in which the wife joined her former solicitor.
The affidavit which the husband seeks leave to read was filed on 9 March 2023. The husband’s counsel says there is no prejudice because the material is not new, these details being contained in the Further Amended Response to Initiating Application filed by the solicitor Ms Beller and her employer. The wife says she is prejudiced because she did not know this was a live issue and does not have the file. I am informed that Ms Beller will be available for cross-examination.
Counsel for the wife asked that I not read Ms Beller’s affidavit on this application. She appropriately however conceded that the material was contained in the Response filed by Ms Beller. It is in my view necessary to read the material to rule on its admissibility. The issues that arise are as follows:
(1)Is late filing fatal to the application?
(2)Is privilege waived because of the previous joinder of Ms Beller?
(3)Is privilege waived because the wife’s conduct in referring to some of the negotiations conducted by the lawyers inconsistent with the maintenance of that privilege?
THE LAW
Part 3.10 of the Evidence Act 1995 (Cth) (“The Evidence Act”):
Division 1—Client legal privilege
117 Definitions
(1) In this Division:
client includes the following:
(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service);
(b) an employee or agent of a client;
(c) an employer of a lawyer if the employer is:
(i) the Commonwealth or a State or Territory; or
(ii) a body established by a law of the Commonwealth or a State or Territory;
(d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client—a manager, committee or person so acting;
(e) if a client has died—a personal representative of the client;
(f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.
confidential communication means a communication made in such circumstances that, when it was made:
(a) the person who made it; or
(b) the person to whom it was made;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it; or
(b) the person for whom it was prepared;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
lawyer means:
(a) an Australian lawyer; and
(b) an Australian‑registered foreign lawyer; and
(c) an overseas‑registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country; and
(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).
party includes the following:
(a) an employee or agent of a party;
(b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party—a manager, committee or person so acting;
(c) if a party has died—a personal representative of the party;
(d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made.
(2) A reference in this Division to the commission of an act includes a reference to a failure to act.
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
…
121 Loss of client legal privilege: generally
(1) This Division does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.
(2) This Division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court.
(3) This Division does not prevent the adducing of evidence of a communication or document that affects a right of a person.
122 Loss of client legal privilege: consent and related matters
(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3) Without limiting subsection (2), a client or party is taken to have so acted if:
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.
(4) The reference in paragraph (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:
(a) the substance of the evidence has been disclosed:
(i) in the course of making a confidential communication or preparing a confidential document; or
(ii) as a result of duress or deception; or
(iii) under compulsion of law; or
(iv) if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or
(b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
(c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).
…
126 Loss of client legal privilege: related communications and documents
If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document.
I am satisfied that the wife was a client, Ms Beller was a lawyer and their communications would constitute confidential communications. It is therefore necessary to turn to a consideration of the circumstances in which the privilege would be lost.
Section 121 deals with loss of client legal privilege generally and s 122 with loss of client legal privilege by consent in related matters. Importantly, s 122(2) refers to the circumstances in which a client has acted in a way that is inconsistent with the client or party objecting to the accusing of the evidence because it wold result in a disclosure of the kind referred to in ss 118, 119 or 120.
As a general principal, confidential communications between lawyer and client, or the contents of a confidential document prepared for the dominant purpose of providing legal advice, are subject to legal professional privilege. I accept the submission of counsel for the wife that the client is the holder of any privilege and is the only person who can waive privilege. Accordingly, it is to her conduct that the enquiry is focused.
Legal professional privilege may be waived by express act or words or may be inferred from conduct. It is therefore necessary to consider question of whether or not the wife has maintained the confidentiality of the communication or has she expressly or impliedly waived the privilege and if so, in what form.
Waiver by conduct amounts to forgoing the right to keep certain information confidential that then allows for a release or disclosure of information which was formerly protected. The subjective intentions of the wife do not determine whether the privilege is impliedly waived.
We are only at this stage dealing with the admissibility of the affidavit, therefore those provisions of the Evidence Act apply. If this application related to inspection of the file itself, it would be necessary to have regard to the common law principles which apply to the tender of documents, the production of documents and the inspection of documents.
I was referred by counsel to the decision in Mann v Carnell (1999) 201 CLR 1 (“Mann v Carnell”). Mann v Carnell sets out the test for waiver of privilege at common law. Paragraph 29 is relevant.
29 Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
In Osland v Secretary of the Department of Justice (2008) 234 CLR 275, the High Court stated that the assessment of whether there is an inconsistency between the conduct of the privilege holder and the confidentiality which the privilege is meant to protect is:
45… to be made in the context and circumstances of the case, and in light of any considerations of fairness arising from that context of those circumstances …
…
49 … questions of waiver are matters of fact and degree
The wife’s counsel submitted that where a party waives privilege in one set of proceedings that should not constitute a waiver for all purposes. I accept that submission. However, here there are two distinguishing features. The first is that the wife joined the solicitor and firm to the proceedings between she and the husband and the husband was a party to those proceedings, notwithstanding they have been discontinued. Secondly, the wife continues to impliedly waive privilege by relying upon collateral evidence of the agreement she seeks to enforce.
Having heard the submissions on behalf of the wife, I am unable to find that she should be permitted to maintain the privilege in circumstances where her case relies upon establishing that certain instructions were given and certain advice received. The confidential communications lie at the heart of the narrative and are the very matters about which she requires factual findings. I accept that there remains an issue about the late filing of the affidavit and any prejudice which might be occasioned to the wife. I am told that some very limited documents have been produced and efforts will be made to produce further documents. Given that Ms Beller is to appear, those matters can be raised with her directly. If there continues to be a prejudice to the wife by the file not being available, she will be in a position to renew any application for an adjournment but it will be necessary for her to establish the nature of the prejudice in circumstances where the scope of the dispute about what is in issue seems squarely to centre upon whether or not the parties reached an agreement about the splitting of superannuation. Accordingly, I grant leave to the husband to read and rely on the affidavit of Ms Beller.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 13 March 2023
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