Goodheart & Goodheart

The case of Goodheart & Goodheart involved a dispute concerning claims to privilege in relation to information exchanged during mediation. The matter was heard by the court, which was tasked with determining whether the privilege had been waived. The husband argued that the privilege had been jointly waived by the parties, while the wife contended that there had been no such waiver. The court needed to decide on the proper characterisation of the information volunteered by junior counsel for the husband and whether the privilege had indeed been waived.

The court considered the nature of the appearance by the parties' legal representatives and the significance of the information disclosed during the mediation. It noted that the information was volunteered by junior counsel for the husband and was not prompted by the court. The court observed that the wife did not object to the information being given and that there was no suggestion that the junior counsel acted without authority. The court concluded that the parties had jointly waived the privilege conferred by section 131 of the Evidence Act, as both parties were entitled to insist upon strict observance of the privilege, and the husband's junior counsel had brought an end to the privilege by disclosing matters canvassed during the mediation.

The court held that a fair-minded lay observer would have understood the words used by the husband's junior counsel to indicate that the privilege had been waived. The court further noted that the information stated by the husband's junior counsel was recorded on transcript and had been set out in the court's reasons. The court found that the husband's case in the s 79 application was for orders dividing assets on a just and equitable basis without specifying the percentage or what assets, and that when the parties sought consent orders for a $2 million part property settlement, the court did not know what the assets that fell for division were.

The court ordered that the application for recusal be dismissed. The court held that there was no basis for the husband to contend that it was plainly on the cards that he would obtain $2 million in the s 79 application, as there was no evidence of the proportion that sum represented in the value of the total asset pool, and no balance sheet of assets was in existence.