Goudarzi and Bagheri
[2017] FamCA 656
•24 August 2017
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 |
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 | ||
| APPLICANT: | Ms Goudarzi | |
| RESPONDENT: | Mr Bagheri |
| FILE NUMBER: | SYC | 7646 | of | 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 Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC7646 of 2008
| Ms Goudarzi |
Applicant
And
| Mr Bagheri |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Mr Bagheri has applied to inspect documents to be produced pursuant to a subpoena issued at his application to the former solicitors for Ms Goudarzi. Ms Goudarzi objects to inspection of some categories of documents required by the subpoena. The subpoena was issued in proceedings in relation to the parties’ children.
Production is opposed because of a claim for legal professional privilege in relation to the material and although it is conceded that privilege has been waived in respect of some records, the contention is that the waiver does not extend to certain of the categories of records specified in the subpoena.
The parenting proceedings were listed for hearing over three days commencing on 14 August 2017. On that date and for reasons given then, the hearing was vacated. On 16 August 2017 the parenting proceedings were relisted for hearing over five days commencing on 26 February 2018.
THE DISPUTE
On 14 August 2017 leave was granted for the issue of a subpoena to produce to the Proper Officer, KK Pty Ltd (“KKPL”) the solicitors who formerly acted for the mother. The subpoena relevantly sought the production of the following records:
Part E
1.…
2.All documents, including correspondence, emails, file notes, memoranda, statements and any other communications, recording advice given to [Ms Goudarzi] by solicitors in your firm and Counsel retained in her matter as to:
(a)The likely outcome of the parenting proceedings between [Ms Goudarzi] and [Mr Bagheri] listed for final hearing for 7 days commencing 23 April 2013 [the parenting proceedings];
(b)The orders that were recommended to be sought in the parenting proceedings;
(c)Settlement of the parenting proceedings, including advice given during the course of negotiations leading to the settlement on or about 23 April 2013,
From the time your firm commencing acting for [Ms Goudarzi] up to and including 23 April 2013.
3.All documents, including correspondence, emails, file notes, memoranda, statements and any other communications, passing between [Ms Goudarzi] and any member of your firm recording or touching upon concerns expressed and allegations made and instructions given by [Ms Goudarzi] about the conduct of [Mr Bagheri] in relation to and touching upon the welfare of the children and comprising:
(a)Her instructions as to the orders sought;
(b)Her instructions throughout the negotiations leading to the settlement of the parenting proceedings;
(c)Her instructions in relation to settlement.;
From the time your firm commencing acting for [Ms Goudarzi] up to and including 23 April 2013.
4.All documents, including correspondence, emails, file notes, memoranda, statements and any other communications, passing between [Ms Goudarzi] and any member of your firm after 23 April 2013that purports to record matters touching upon [Ms Goudarzi’s] instructions in entering into the orders made on 23 April 2013 and advice given by any member of your firm to her in relation to the same.”
On 16 August 2017 the parties agreed to vary paragraph 2 by adding “final”:
·in (a) before “parenting” where it first occurs;
·in (b) before “orders”; and
·in (c) before “parenting”.
On the basis of that variation and provided the final sentence of paragraph 2 was excluded, there was no objection by the mother to the subpoena as far as that paragraph is concerned. The final sentence of paragraph 2 only works to limit the temporal scope of the records sought. Removing that sentence does not limit the category of documents specified in the subpoena and it is removed. On that basis there is nothing to prevent all of the parties inspecting documents produced pursuant to paragraph 2 of the subpoena as amended.
The remaining controversy is whether the parties may inspect any records within the descriptions of paragraphs 3 and 4 of Part E of the subpoena. That controversy falls to be determined by reference to the competing claims of the parties about waiver of the mother’s legal professional privilege in respect of those records.
THE BACKGROUND FACTS
For many years the parties have been extensively engaged in proceedings arising out of the breakdown of their marriage. Final parenting orders were made by consent on 23 April 2013. Those orders included provision for the children, D who is now 16 years of age and E who is 11 years of age, to live with the mother and spend time with the father.
On 2 February 2016 the mother filed an Amended Initiating Application seeking changes to the parenting orders.
For completeness, on 4 April 2016 final orders were made for settlement of the parties’ property. The mother appealed against those orders. The appeal has been heard but as at the date of hearing of these interlocutory proceedings, the appeal had not been determined.
The parenting proceedings are now listed for hearing over five days commencing on 26 February 2018.
Relevant to the interlocutory issue before the Court:
·In the single expert report dated 24 August 2016, forensic psychiatrist, Dr LL recorded[1] that:
[1] On page 4 of the report
[Ms Goudarzi] confirmed that the children had basically not missed any visits with their father since the orders were made in April 2013 until mid December 2015. However she told me that she was forced by her solicitors to agree to the orders in April 2013. ..”
(emphasis added)
·At paragraph 12 of her affidavit sworn 4 August 2017 the mother deposed:
12.On the 23 April 2013 final parenting orders were made by consent. I reluctantly entered into those orders, notwithstanding my reluctance I followed the legal advise (sic) of my then barrister and solicitor. I was reluctant to consent to parenting orders because I held serious concerns about the Applicant’s behavior that I had observed over many years. However, I ultimately consented to the orders because I believed the inclusion of an order for the children to attend counseling (sic) would safeguard the children. The children attended upon [Mr F] until January 2016. Notwithstanding my best intention to implement the orders I became increasingly worried for the children’s safety in the Applicant’s care. …. “
(emphasis added)
The issue before the Court is whether, by those statements, the mother waived legal professional privilege in respect of the documents described in paragraphs 3 and 4 of the subpoena to KKPL.
THE LEGAL POSITION
As privilege is claimed in relation to production of documents rather than their admission into evidence, the relevant law is the common law and not the Evidence Act1995 (Cth).
It is common ground that legal professional privilege applies to most if not all of the documents sought by the subpoena. It is common ground that in respect of the documents described in paragraph 2 of the subpoena (as amended by agreement), the mother has waived her privilege.
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 legal professional privilege has occurred was expressed in the following terms by the majority at [29]:
Waiver may be express or implied ...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.
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 contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentially that would otherwise pertain to the communication.
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 indirectly put the contents of the otherwise privileged communication in issue: see [Rio Tinto] at [65]. Indeed, even the fact that the holder of the privilege makes clear that the advice was relevant or contributed to a particular course of conduct would not be sufficient to waive the privilege unless, possibly, the contents of the legal advice (and not merely the fact of the advice) are specifically put in issue by relying on the contents of the advice to vindicate a claimed state of mind: [Rio Tinto] at [67].
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 been an implied waiver of privilege, the Court’s focus will be on whether there has been conduct that is inconsistent with the maintenance of confidentiality in the communication over which privilege is asserted. An assessment of whether there has been an implied waiver will be 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 privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication.
31.As the primary judge recognised, a pleading of legal advice may be sufficient 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 nonetheless open to conclude that privilege 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 client is bringing proceedings in which the content of the privileged communications could, as a reasonable possibility, be relevant and of assistance to the other party. For the client to do this is not inconsistent with the maintenance of the privilege, and does not give rise to unfairness of the type in question. What would involve inconsistency and relevant unfairness is the making of express or implied assertions about the content of the privileged communications, while at the same time seeking to maintain the privilege. In this respect, it may be sufficient that the client is making assertions about the client’s state of mind, in circumstances where there were confidential communications likely to have affected that state of mind.
(Emphasis added.)
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 meeting with the applicant. His Honour addressed some of the authorities referred to above but included in a discussion of the relevant principles was the following:
“….
7.Fourthly, the disclosure of the gist or substance of legal advice may 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 references to “the substance”, “effect”, or “content” of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed. By way of illustration, if there is a disclosure that a client has been advised that interpretation “A” is preferable to interpretation “B” of a legislative provision, then even if there is no disclosure of the reasoning leading to that conclusion, the reasoning and content of the advice may be waived, 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 context is inconsistent with maintaining the privilege will depend upon the circumstances of the case and matters of fact and degree.
DISCUSSION
It was submitted for the father and conceded on behalf of the mother (as to paragraph 2 of the subpoena), that the mother waived legal professional privilege in relation to parts of her former solicitors’ file.
The mother:
·swore in her affidavit of 4 August 2017 that she had reluctantly entered into the orders, of 23 April 2013 because she “followed the legal advise (sic) of my then barrister and solicitor”; and
·told Dr LL that she was “forced by her solicitors to agree to the orders in April 2013”.
The dispute between the principal parties is a very narrow one:
Does the waiver of the mother’s legal professional privilege extend to the categories of documents from the file of her former solicitors that are referred to in paragraphs 3 and 4 of the subpoena in the same way as is conceded in respect of those referred to in paragraph 2?
The documents that are subject to the concession of waiver are documents recording advice given to the mother by her then solicitors or counsel as to:
·the likely outcome of the final parenting proceedings due to commence on 23 April 2013;
·final orders that the solicitors or counsel recommended be sought in those proceedings;
·the final settlement, including advice given during the course of negotiations that lead to the settlement on 23 April 2013.
In respect of the contested material:
Paragraph 3 would encompass all documents that passed between the mother and the solicitors in relation to concerns expressed, allegations made and instructions given by the mother about the conduct of the father relevant to the welfare of the children which comprised the mother’s instructions:
·as to the orders sought;
·throughout the negotiations leading to the settlement of the proceedings;
·as to settlement.
Paragraph 4 would encompass all documents that passed between the mother and the solicitors after 23 April 2013 that record matters touching upon the mother’s instructions in entering into the orders made on 23 April 2013 and advice given by any member of the firm in that regard.
Broadly speaking those categories of documents would extend access to the other parties, beyond advice given by the lawyers (paragraph 2), to the mother’s instructions and to communication between the mother and her solicitors after the orders were made.
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 December 2004[2] that:
(2)The wife also relies on the status of her health at the time she entered into the Consent Orders as affecting her capacity to provide proper instructions in relation to the proposed terms.
[2] At [24] of the judgment
In seeking to impugn the integrity of her consent to orders, the wife’s position in Stamp had some similarities to that of the mother before me. The majority of the Full Court (May & Boland JJ) in that case held that the wife had waived legal professional privilege in relation to her solicitors’ file. They found:
58.If there was a disability, then there must be an issue about the extent to which it affected her capacity to give instructions to her solicitors and how it affected her proper settlement of the property dispute. That will inevitably draw attention to the role played by her solicitors, and any advice to and influence upon the wife. An obvious question is what was the extent and manner of her instructions to them?
In my view the mother here has also invited scrutiny of the categories of documents in her solicitors’ files caught by paragraphs 3 and 4 of the subpoena. The mother having made the representations referred to above, there would be an inconsistency between the maintenance of the mother’s privilege and the father’s right to properly test the mother’s case. For example, as in Stamp above, the detail of her instructions might shed light on the assertion that her preference was inconsistent with her consent to the orders and in particular, that she was overborn when she gave that consent. As to the last category of documents (paragraph 4 of the subpoena), they too could assist in testing the mother’s representations about her state of mind when the orders were made.
The mother’s objection is rejected and the parties have leave to inspect all documents that fall within the definition of the subpoena as amended by agreement between the parties and by the Court. Orders 11 and 12 made on 16 August 2017 define the practical arrangements for identifying documents that fall within the requirements of the subpoena.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 24 August 2017.
Associate:
Date: 24 August 2017
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