Legal Research
Cases
Goudarzi and Bagheri

Goudarzi and Bagheri

Case [2017] FamCA 656 24 August 2017

Type to search within this case.

FAMILY COURT OF AUSTRALIA

GOUDARZI & BAGHERI

[2017] FamCA 656

FAMILY LAW – PRACTICE AND PROCEDURE – Where an application for the production of documents is opposed due to legal professional privilege – Where it is contended that privilege has been waived due to representations made about state of mind when entering into previous orders – Where there has been a concession that privilege has been waived for some documents – Where the relevant law is common law as the privilege claimed is in relation to production of documents rather than admission into evidence – Where objection is rejected and leave is granted to inspect documents

Evidence Act 1995 (Cth)

Commissioner of Taxation v Rio Tinto Ltd[2006] FCAFC 86; (2006) 151 FCR 341
Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) (No 2) [2017] FCA 711
Ferella v Official Trustee in Bankruptcy[2010] FCA 766; (2010) 188 FCR 68
Macquarie Bank Limited v Arup Pty Limited[2016] FCAFC 117
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Stamp & Stamp [2007] FamCA 420

APPLICANT:

Ms Goudarzi

RESPONDENT:

Mr Bagheri

FILE NUMBER:

SYC

7646

2008

DATE DELIVERED:

24 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

16 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lawson

SOLICITOR FOR THE APPLICANT:

Cheryl Orr Family Law

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:	Barkus Doolan Family Lawyers
COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER:	Ms Stolier

THE INDEPENDENT CHILDRENS LAWYER:

Mark Whelan Lawyer Pty Ltd

Orders

The mother’s objection to paragraphs 3 and 4 of the Subpoena to the Proper Officer, KK Pty Ltd is rejected.
The parties have leave to inspect all documents produced pursuant to that subpoena as amended by agreement between the parties and by the Court.
AND THE COURT NOTED the terms of orders 11 and 12 made on 16 August 2017 in relation to the practical arrangements for inspection.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Goudarzi & Bagheri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Goudarzi and Bagheri

Details

AGLC: Goudarzi and Bagheri [2017] FamCA 656
Case: [2017] FamCA 656
Decision Date: 24 August 2017

CaseChat Overview and Summary

In the matter of *Goudarzi and Bagheri*, heard before Loughnan J, the dispute concerned objections raised by the mother to specific paragraphs of a subpoena issued to the Proper Officer of KK Pty Ltd.

The central legal issue before the Court was whether the mother's objections to paragraphs 3 and 4 of the subpoena should be upheld.

Loughnan J rejected the mother's objections, finding that the documents sought by the subpoena were relevant to the proceedings. The Court allowed the parties leave to inspect all documents produced pursuant to the subpoena, as amended by agreement and by the Court. The Court also noted the terms of prior orders made on 16 August 2017 concerning the practical arrangements for inspection.

Orders

Orders of the court

The mother’s objection to paragraphs 3 and 4 of the Subpoena to the Proper Officer, KK Pty Ltd is rejected.

The parties have leave to inspect all documents produced pursuant to that subpoena as amended by agreement between the parties and by the Court.

AND THE COURT NOTED the terms of orders 11 and 12 made on 16 August 2017 in relation to the practical arrangements for inspection.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

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.

Citations

AGLC Citation

Goudarzi and Bagheri [2017] FamCA 656

Most Recent Citation

Newsome & Newsome [2025] FedCFamC2F 747

Cases citing this decision · 1 of 1 shown

Newsome & Newsome
[2025] FedCFamC2F 747 Para 23

…f subpoena to produce.[8] [8] Grant & Downs (1976) 135 CLR 13; followed in X Corporation Pty Ltd & Jess and Anor [2016] FamCAC 43; Goudarzi & Bagheri [2017] FamCA 656 at [14].…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) (No 2)
[2017] FCA 711 Para 7

…In Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) (No 2) [2017] FCA 711, the Federal Court of Australia ( Nicholas J) was dealing with an argument in aid of an application for production about an implied waiver of legal professional privilege as a result of disclosures made by a respondent at a meet…
Macquarie Bank Limited v Arup Pty Limited
[2016] FCAFC 117 Para 6

…In Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117, the Full Court of the Federal Court of Australia (Middleton, Robertson and Gleeson JJ) dismissed an appeal against a refusal to make orders based on an implied waiver of legal professional privilege. The Court held: 29.In determining whether there has b…
Hancock v Rinehart
[2013] NSWSC 1978 Para 6

…ufficient to give rise to a waiver of privilege, however a pleading is not necessary for waiver to occur. To this effect, in Hancock v Rinehart [2013] NSWSC 1978, Brereton J noted (at [22]) that the pleading in that case did not deploy or even refer to legal advice or its effect. His Honour noted that it was nonethe…
Ferella v Official Trustee in Bankruptcy
[2010] FCA 766 Para 5

…In Ferella v Official Trustee in Bankruptcy [2010] FCA 766; (2010) 188 FCR 68 at [65] Yates J described the correct approach in the following terms: ...However the question is not simply whether the holder of the privilege has put that person’s state of mind in issue but whether that person has directly or indire…
Osland v Secretary, Department of Justice
[2008] HCA 37 Para 7

…d, including the factual premises and circumstances leading to that conclusion. 8.In Osland v Secretary,Department of Justice (2008) 234 CLR 275 Gleeson CJ, Gummow, Heydon and Kiefel JJ made clear at [44]-[49] that the question whether a limited disclosure of the existence and effect of legal advice in a given contex…
Council of the New South Wales Bar Association v Archer
[2008] NSWCA 164 Para 6

…had been waived if other factors of the case warranted such a finding. 32.As stated in Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 at [48], by Hodgson JA, with whom Campbell JA agreed: It is not enough to bring about a waiver of client legal privilege that the clie…
Stamp and Stamp
[2007] FamCA 420 Para 7

…In Stamp & Stamp [2007] FamCA 420 (“Stamp”) the Full Court of this Court was dealing with an application for leave to appeal in relation to a refusal to allow a husband access to the wife’s solicitors’ file. The wife had asserted in particulars provided to the solicitors for the husband in a letter dated 16 Decembe…
Commissioner of Taxation v Rio Tinto Ltd
[2006] FCAFC 86 Para 4

…The Full Court of the Federal Court of Australia applied Mann v Carnell in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 151 FCR 341. In that case, the Court held at [52]: ...where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the co…
DSE (Holdings) Pty Ltd v InterTAN Inc
[2004] FCA 1251 Para 6

…iderations of forensic unfairness. 30.Whilst not to be treated as a statutory formulation, in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 (‘ DSE ’), Allsop J (as his Honour then was) described (at [58]) an implied waiver as arising when: ... the party entitled to the privilege makes an as…
Bennett v Chief Executive Officer of the Australian Customs Service
[2004] FCAFC 237 Para 7

…ay give rise to an implied waiver of the whole of it. As Tamberlin J explained in Bennett v Chief Executive Officer of Australian Customs Service [2004] FCAFC 237; (2004) 140 FCR 101 at [13]: Various expressions are used in the formulation of principles relating to waiver of legal professional privilege, such as re…
DSE (Holdings) Pty Ltd v InterTAN Inc
[2003] FCA 384 Para 6

…informed by considerations of forensic unfairness. 30.Whilst not to be treated as a statutory formulation, in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 (‘ DSE ’), Allsop J (as his Honour then was) described (at [58]) an implied waiver as arising when: ... the party entitled to the p…
Mann v Carnell
[1999] HCA 66 Para 3

…In Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 (“ Mann v Carnell” ) the High Court was dealing with an argument that waiver of legal professional privilege had occurred when there was a disclosure of privileged material to a third party. The guiding principle to be applied in determining whether waiver of leg…

Legislation cited in this decision · 3

Evidence Act 1995 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention
Family Law Rules 2004 (Cth)
1 mention