Gonsalves & Gonsalves (No 2)
[2023] FedCFamC1F 449
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gonsalves & Gonsalves (No 2) [2023] FedCFamC1F 449
File number(s): SYC 1702 of 2019 Judgment of: CHRISTIE J Date of judgment: 1 June 2023 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – SUBPOENA OBJECTION – EX-TEMPORE REASONS – Where the substantive proceedings relate to the making of a financial agreement between the parties – Where the wife caused a subpoena to be issued to the solicitor who acted for the husband at the time of the making of the financial agreement – Where the husband objects to the inspection of those documents on the basis of professional legal privilege – Where the content of the husband’s trial affidavit is inconsistent with the maintenance of privilege for a certain period of time – Where orders permit inspection of some of the subpoena material with the husband having first access. Legislation: Evidence Act1995 (Cth)
Family Law Act 1975 (Cth) s 90D
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.33
Cases cited: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 1 June 2023 Place: Sydney Counsel for the Applicant: Ms Clarke Solicitor for the Applicant: J S Pinto & Co Counsel for the Respondent: Bazaliza Lawyers Solicitor for the Respondent: Ms Ingenito 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:
1 June 2023
THE COURT ORDERS THAT:
1.The respondent has first access to inspect the documents produced on subpoena by Mr E in order to divide them into three categories:
(a)Documents up to the end of April 2016;
(b)Documents for May and June 2016; and
(c)Documents from 1 July 2016 to date.
2.At the expiration of seven days I grant leave to the applicant to inspect documents produced on subpoena in category B.
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 the pseudonym Gonsalves & Gonsalves has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an interim application concerning the husband’s objection to a subpoena caused to be issued on application of the wife.
The substantive proceedings in this matter relate to a financial agreement entered into by the parties under s 90D of the Family Law Act 1975 (Cth) (“the Act”). The wife, Ms Gonsalves, seeks a declaration that the agreement be upheld and binding on the parties where the husband, Mr Gonsalves, seeks a declaration that there was complete performance of the agreement.
On 13 March 2023 the matter was listed for final hearing. The parties consented to an adjournment of the final hearing in order for both parties to issue subpoenae.
An order was made granting leave to the wife to issue a subpoena to Mr E. Mr E was the solicitor acting for the husband at the time the financial agreement was entered into by the parties.
On 24 April 2023, the wife issued a subpoena to “[Mr E, F Lawyers]” to produce documents to the Court, namely:
…
2. All papers, file notes, record of attendances, documents, records, deeds, correspondence (including emails, letters, memos and text messages) relating to all matters involving [Mr Gonsalves] since 1st July 2014 to date including but not limited to all solicitors files involving [Mr Gonsalves] and his wife [Ms Gonsalves]).
(As per original)
The subpoena was complied with and hard copy documents were produced to the Subpoena Department of the Sydney Registry of this Court on 8 May 2023.
On 9 May 2023, the husband filed a Notice of Objection. The details of the objection are as follows:
1. The documents called for are subject to legal professional privilege;
2.Privilege has not been waived for the inspection of these documents by the Applicant Wife
3.The Respondent Husband wishes to inspect the material, and divide the documents into those captured by the privilege, i.e. and those where there is no privilege;
4.There is a serious prejudice if the Applicant is able to review these documents prior to the Respondent reviewing and preparing a table of the privileged documents; and
5.In the first instance, the Respondent wishes to inspect the material, collate those protected by privilege and those not, and then a discussion can be had about access to both of those bundles.
(As per the original)
THE LAW
On application, the Court may make an order setting aside all or part of a subpoena: r 6.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The Evidence Act1995 (Cth) does not apply to pre-trial procedures such as the issuing of subpoenae.
The issue for determination in this case is whether the husband’s conduct, or the case he is prosecuting, are inconsistent with maintenance of legal professional privilege.
Mann v Carnell (1999) 201 CLR 1 sets out the test for waiver of privilege at common law. Relevantly, the High Court at [29] say:
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, 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.
CONSIDERATION
As previously stated, on 8 June 2016 the parties entered into the financial agreement under s 90D of the Act.
The wife says that the agreement should be read as including an equal division of the husband’s superannuation. The agreement does not read that way on its face. The wife asserts that the parties had a mutual understanding that the agreement included a superannuation split. The primary proceedings concern her application to enforce the agreement.
On 19 March 2019 the wife commenced proceedings in the Federal Circuit Court (as it then was).
On 13 March 2023, when the matter was due to be heard on a final basis, I heard an application by the husband to read and rely on an affidavit by the solicitor who acted for the wife in the family law proceedings which resulted in the making of the financial agreement.
I permitted that affidavit to be read.
I have had regard to the husband’s affidavit filed in the primary proceedings on 14 June 2019. The husband says at paragraphs 3.13 and 3.14:
Between May and June 2016, I gave precise instructions (verbally) to my Solicitor to not include the superannuation in the agreement.
I also instructed [Mr E] that I would not be signing any Financial Agreement if the superannuation was to be split 50% each.
The husband further says at paragraph 4.3: “My [verbal] instructions given to [Mr E] were clear and precise, that a split of my superannuation was not to be included in the Financial Agreement”.
The dispute as it has arisen during the oral hearing of argument has narrowed. I was told by counsel who appears on behalf of the husband that there is no real opposition to production of documents between May and June 2016, having regard to paragraphs 3.13 and 3.14 of the husband’s affidavit. For that reason, the husband says, he should be given first access.
I have heard submissions by counsel for the wife. Counsel for the wife says that, their understanding was that, the privilege waiver did commence with the documents in May/June 2016 and the subpoena which was drafted, did not take on board that consideration. Therefore, the scope of the dispute now relates to whether or not I ought grant leave to inspect documents after June 2016.
On behalf of the husband it was said that there was no explicit privilege waiver in respect of those documents and accordingly, I should not consider that privilege had been waived.
Counsel for the wife said I was entitled to take into account the interests of justice when considering whether or not privilege had been waived and whether or not the Court needed the documents to determine the issues before it.
I accept that sometimes privilege may be waived in circumstances where the interests of justice require it. However, I am not confident that the evidence supports that in this case at this stage. Those types of cases in which privilege is waived because the interests of justice require same, are ones where the Court would otherwise be misled. The wife has not indicated that there are specific documents which exist in the period after June 2016 which, if the Court were to be denied copies of same, would cause the Court to be misled. Accordingly, what I propose to do is a hybrid of what I raised with counsel. I propose to that, since the evidence the husband has given in the paragraphs of his affidavit are inconsistent with the maintenance of the privilege he seeks to maintain in respect of May and June, those documents should be produced and may be inspected.
The contents of the file which led to the concluded agreement between the parties, which the wife seeks to enforce, is central to the resolution of the matter before the Court in circumstances where both parties to the litigation assert that the instructions provided to their respective solicitors will support the relief which they seek.
Accordingly, I propose to grant first access to the respondent’s solicitor’s to inspect the documents and to divide them into three categories. Category number one will be documents before May 2016. They should be placed in a sealed envelope marked with the letter A.
Documents which were generated in May and June of 2016 should be separated and placed in an unsealed envelope which is marked B.
Documents from July 2016 to date should be placed in a third envelope and marked C.
I intend to provide seven days to the respondent husband to do same, after which I will grant leave to the applicant to inspect the documents in envelope B.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 1 June 2023
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