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…
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CaseChat Overview and Summary
The Court considered the principles set out in Osland v Secretary, Department of Justice, which emphasise that the assessment of privilege waiver must be made in the context of the specific circumstances of the case. The Court recognised that questions of waiver are matters of fact and degree, and that fairness is a key consideration. The husband's counsel conceded that there was no opposition to the production of documents from May to June 2016, given the husband's affidavit. However, the dispute centred on whether the privilege waiver extended to documents created after June 2016. The wife's counsel argued that the interests of justice warranted the consideration of these documents, as the subpoena did not account for the privilege waiver that had already occurred.
The Court concluded that the husband's clear and precise instructions to his solicitor constituted an explicit waiver of legal professional privilege in relation to documents from May to June 2016. However, as for documents created after June 2016, the Court found no evidence of an explicit waiver. The wife's counsel's argument regarding the interests of justice was not enough to override the husband's clear instructions. Therefore, the Court decided not to grant leave to inspect documents post-June 2016.
The Court ordered that the husband be given first access to documents from May to June 2016, as there was no opposition to their production. No such order was made for documents created after June 2016, as the Court found no evidence of an explicit waiver of privilege in relation to those documents.
Orders
Orders of the court
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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
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.