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…
Continue reading Gonsalves & Gonsalves
Sign in free to access the full text
Details
- AGLC
- Gonsalves & Gonsalves [2023] FedCFamC1F 146
- Case
- [2023] FedCFamC1F 146
- Decision Date
CaseChat Overview and Summary
The matter of Gonsalves & Gonsalves involves a husband seeking a declaration that there was complete performance of a financial agreement and dismissal of the application. The dispute centres around the interpretation and enforcement of the Financial Agreement entered into by the parties under section 90D of the Family Law Act 1975 (Cth). The wife initiated proceedings in the Federal Circuit Court to contest the final orders application, leading to the current application before the Court. A significant issue that arose during these proceedings concerns the husband's request to rely on an affidavit from the wife's former solicitor, Ms Beller, who was previously joined in the proceedings but subsequently had the application against her and her employer settled and discontinued.
The court was required to decide three primary legal issues: (1) whether the late filing of the affidavit was fatal to the application, (2) if the client legal privilege was waived due to the previous joinder of Ms Beller, and (3) if the wife's conduct in referring to some of the negotiations conducted by her lawyers was inconsistent with maintaining the privilege. The court analysed these issues in light of the provisions of Part 3.10 of the Evidence Act 1995 (Cth), which governs client legal privilege. The court determined that despite the late filing, the material was necessary to rule on its admissibility. Regarding the waiver of privilege, the court found that the previous joinder of Ms Beller and the wife's conduct in discussing certain negotiations did not result in a waiver of privilege. The court concluded that the affidavit could be considered as it contained information already disclosed in the proceedings, and Ms Beller would be available for cross-examination.
The court ruled in favour of the husband, allowing him to read and rely on Ms Beller's affidavit, finding no prejudice as the information was not new and had already been disclosed in the proceedings. The wife's objections were dismissed, and the court permitted the use of the affidavit to aid in its determination of the issues at hand. This decision highlights the court's careful consideration of the balance between maintaining client legal privilege and the need for full disclosure in legal proceedings.
The court was required to decide three primary legal issues: (1) whether the late filing of the affidavit was fatal to the application, (2) if the client legal privilege was waived due to the previous joinder of Ms Beller, and (3) if the wife's conduct in referring to some of the negotiations conducted by her lawyers was inconsistent with maintaining the privilege. The court analysed these issues in light of the provisions of Part 3.10 of the Evidence Act 1995 (Cth), which governs client legal privilege. The court determined that despite the late filing, the material was necessary to rule on its admissibility. Regarding the waiver of privilege, the court found that the previous joinder of Ms Beller and the wife's conduct in discussing certain negotiations did not result in a waiver of privilege. The court concluded that the affidavit could be considered as it contained information already disclosed in the proceedings, and Ms Beller would be available for cross-examination.
The court ruled in favour of the husband, allowing him to read and rely on Ms Beller's affidavit, finding no prejudice as the information was not new and had already been disclosed in the proceedings. The wife's objections were dismissed, and the court permitted the use of the affidavit to aid in its determination of the issues at hand. This decision highlights the court's careful consideration of the balance between maintaining client legal privilege and the need for full disclosure in legal proceedings.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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 privilege117 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 adviceEvidence 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 LitigationEvidence 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 documentsIf, 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.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.