Grady and Chilcott and Ors

Case [2018] FCCA 1690

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRADY & CHILCOTT & ORS [2018] FCCA 1690
Catchwords:
FAMILY LAW – Application by respondent’s mother and brothers to be joined as third parties – waiver of legal professional privilege – costs – case management.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79(4), 90RD(2), 92, 117(2A)
Federal Circuit Court Rules 2001 (Cth), rr.11.03, 21.15, sch.1
Evidence Act 2008 (Vic), ss.118, 122, 123

Cases cited:

Bishop and Bishop [2003] FamCA 240

Southwell & Jane(No.2) [2011] FamCA 734

Hancock v Rinehart (Privilege) [2016] NSWSC 12
IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311
Maria Saravinovska v Krste (Chris) Sarvinovska, Chris Sarinovska v George Sarivinovksa (No 6) [2016] NSWSC 964
Attorney-General for the Northern Territory and Maurice and others (1986) 161 CLR 475
Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297
Prantage and Prantage [2013] FamCAFC 105
Kemp & Wilkinson (No.2) [2015] FCCA 2268
Applicant: MS GRADY
First Respondent: MR CHILCOTT
Second Respondent: MR A CHILCOTT
Third Respondent: MR B CHILCOTT
Fourth Respondent: MS C CHILCOTT
File Number: MLC 1297 of 2014
Judgment of: Judge Harland
Hearing date: 24 April 2018
Date of Last Submission: 24 April 2018
Delivered at: Melbourne
Delivered on: 29 June 2018

REPRESENTATION

Counsel for the Applicant: Mr Stavris
Solicitors for the Applicant: Anthonys Solicitors
Counsel for the First Respondent: Mr Penno
Solicitors for the First Respondent: Bevan-Rhys James
Counsel for the Second, Third and Fourth Respondent: Mr Felkel
Solicitors for the Second, Third and Fourth Respondent: Prior Law

ORDERS

  1. That Mr A Chilcott be joined to the proceeding as the Second Respondent.

  2. That Mr B Chilcott be joined to the proceedings as the Third Respondent.

  3. That Ms C Chilcott be joined to the proceedings as the Fourth Respondent.

  4. That within 21 days the legal representatives for the applicant and the First Respondent confer and jointly inspect the documents produced by Lander & Rogers and Stonnington & Zervas for the purpose of identifying which documents are subject to the waiver of privilege and shall prepare two lists of documents:

    (a)An agreed list of documents where privilege has been waived; and

    (b)A list of documents which are subject to dispute as to whether or not privilege has been waived.

  5. In the event there are documents in the category of 4(a) herein, the parties shall copy those documents, index them, and put them in a folder for production to chambers for rulings on the privilege issue.

  6. That within 28 days the parties file and serve a joint trial plan which shall include estimates of opening and closing addresses, and the examination in chief and the cross examination of parties and witnesses.

  7. That the matter be listed for further mention on 14 August 2018 at 9:30am for the determination of the following issues:

    (a)the future direction of this case;

    (b)as to the timing of the payment to the applicant of her costs quantified in the sum $12,276; and

    (c)argument as to the costs of Lander & Rogers and Stonnington &…

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AGLC
Grady and Chilcott and Ors [2018] FCCA 1690
Case
[2018] FCCA 1690
Decision Date

CaseChat Overview and Summary

This proceeding concerned an application before Judge Harland. The applicant sought to join Mr A Chilcott, Mr B Chilcott, and Ms C Chilcott to the proceedings as the Second, Third, and Fourth Respondents respectively. The dispute also involved the identification and production of documents, with particular attention to issues of privilege waiver.

The court was required to determine whether to join the Chilcotts as respondents. Further, it needed to establish a process for identifying documents where privilege had been waived, distinguishing these from documents where privilege remained disputed. The court also had to consider the future direction of the case, the timing of payment of the applicant's costs, and the costs associated with Lander & Rogers and Stonnington & Zervas.

Judge Harland ordered that the Chilcotts be joined as respondents. The court directed the legal representatives for the applicant and the First Respondent to confer and jointly inspect documents produced by Lander & Rogers and Stonnington & Zervas to identify those subject to a waiver of privilege. Two lists were to be prepared: an agreed list of documents where privilege had been waived, and a list of disputed documents. Documents where privilege was agreed to have been waived were to be copied, indexed, and produced to chambers for rulings on privilege. A joint trial plan was to be filed within 28 days. The matter was listed for further mention to determine the future direction of the case, the timing of payment of the applicant's costs ($12,276), and argument regarding the costs of Lander & Rogers and Stonnington & Zervas. Stonnington & Zervas were also ordered to file a memorandum of costs for compliance with a subpoena.

Orders

Orders of the court

1.

That Mr A Chilcott be joined to the proceeding as the Second Respondent.

2.

That Mr B Chilcott be joined to the proceedings as the Third Respondent.

3.

That Ms C Chilcott be joined to the proceedings as the Fourth Respondent.

4.

That within 21 days the legal representatives for the applicant and the First Respondent confer and jointly inspect the documents produced by Lander & Rogers and Stonnington & Zervas for the purpose of identifying which documents are subject to the waiver of privilege and shall prepare two lists of documents:

(a) An agreed list of documents where privilege has been waived; and

(b) A list of documents which are subject to dispute as to whether or not privilege has been waived.

5.

In the event there are documents in the category of 4(a) herein, the parties shall copy those documents, index them, and put them in a folder for production to chambers for rulings on the privilege issue.

6.

That within 28 days the parties file and serve a joint trial plan which shall include estimates of opening and closing addresses, and the examination in chief and the cross examination of parties and witnesses.

7.

That the matter be listed for further mention on 14 August 2018 at 9:30am for the determination of the following issues:

(a) the future direction of this case;

(b) as to the timing of the payment to the applicant of her costs quantified in the sum $12,276; and

(c) argument as to the costs of Lander & Rogers and Stonnington & Zervas.

8.

That Stonnington & Zervas file and serve a memorandum of costs for compliance with the subpoena addressed to the respondent within 21 days.

9.

A copy of these reasons and orders be send to Lander & Rogers and Stonnington & Zervas by my Chambers.

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

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