Hall and Hall and Anor

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FAMILY COURT OF AUSTRALIA

HALL & HALL AND ANOR [2016] FamCA 745
FAMILY LAW – SUBPOENA – where the other party objects to the production of documents on the basis of legal professional privilege – where the claim is disputed by the husband – where it is argued that privilege has been waived – where the Court considers the documents were bought into existence for the dominant purpose of providing legal advice – where the Court considers that the privilege claimed has not been waived – where the objections are upheld.
Family Law Act 1975 (Cth)
Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 96
Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission (2002) 213 CLR 543
Kelly v Deluchi [2012] NSWSC 841
Mann v Carnell (1999) 201 CLR 1
New South Wales v Betfair Pty Ltd (2009) 180 FCR 543
Nolan v Nolan & Ors [2013] QSC 140
Perazzoli v BankSA (No 2) [2016] FCA 260
Pratt Holdings Pty Ltd v Commission of Taxation (2004) 136 FCR 357
Strahan & Strahan (2013) FLC 93-570
APPLICANT: Mr Hall
RESPONDENT: Ms Hall
OTHER PARTY: Mr Simons
FILE NUMBER: ADC 3671 of 2013
DATE DELIVERED: 6 September 2016
PLACE DELIVERED: Adelaide
PLACE HEARD: Adelaide
JUDGMENT OF: Dawe
HEARING DATE: 25 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roder, SC
(with Mr Jordan)
SOLICITOR FOR THE APPLICANT: Jordan & Fowler Barristers & Solicitors
COUNSEL FOR THE RESPONDENT: Mr Livesey, QC
(with Ms Kari of Counsel)
SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Simon Lawyers
COUNSEL FOR THE OTHER PARTY: Mr Abbott, QC
(with Mr Doyle of Counsel)
SOLICITOR FOR THE OTHER PARTY: Simon Lawyers

Orders

  1. Compliance with items 7 and 8 of the subpoena to the other party filed on 9 September 2015 is not required.

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 Hall & Hall & Anor 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 ADELAIDE

FILE NUMBER: ADC 3671  of 2013

Mr Hall

Applicant

And

Ms Hall

Respondent

And

Mr Simons
Other Party

REASONS FOR JUDGMENT

INTRODUCTION

  1. In ongoing proceedings between the wife MS HALL and the husband MR HALL, the husband issued a subpoena directed to the solicitor MR SIMONS (“the other party”) who had previously acted for the wife’s father.

  2. The other party filed an Amended Notice of Objection objecting to the production and inspection of documents claiming legal professional privilege.

  3. The husband in the proceedings disputed the claim of privilege.

Relevant documents

  1. The Court…

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Details
Case
[2016] FamCA 745
Decision Date

CaseChat Overview and Summary

This matter concerned a dispute between the parties, identified as Hall and Hall and Anor, heard by Dawe J. The core of the dispute involved a claim for privilege in relation to certain documents, specifically items 7 and 8 of a subpoena filed on 9 September 2015.

The legal issue before the court was whether the claim for privilege over the documents was valid, particularly in circumstances where the deceased had consulted a solicitor for the purpose of preparing a will. The husband's counsel argued that the mere fact of consultation for will preparation did not automatically establish privilege, referencing the decision in *Kelly v Deluchi*.

Dawe J considered the context of the *Kelly v Deluchi* decision, which involved family provision claims. His Honour noted that the applicant in *Kelly v Deluchi* had not provided evidence that the solicitor's notes recorded confidential legal advice or that their disclosure would reveal such advice. Furthermore, Dawe J highlighted that under section 54 of the relevant Act, a will, including revoked wills and copies, must be made available for inspection by certain categories of persons, such as beneficiaries or issue. In relation to notes of instructions for a will, if these simply recorded the deceased's instructions which were subsequently reflected in the executed will, and did not record any legal advice given, then such instructions were not considered to remain confidential.

Consequently, compliance with items 7 and 8 of the subpoena was not required, indicating that the claim for privilege was not upheld in respect of those specific documents.

Orders

Orders of the court

1.

Compliance with items 7 and 8 of the subpoena to the other party filed on 9 September 2015 is not required.

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

Submissions made by counsel on behalf of the husband called into question the claim for privilege based upon the “mere circumstances” that the deceased consulted the solicitor for the purpose of giving instructions to prepare a will. Counsel relied upon the decision of Kelly v Deluchi [2012] NSWSC 841 a decision of Hallen AsJ in July 2012 which related to proceedings concerning claims for family provision under the NSW legislation. Counsel relied on paragraph 221 of that judgment. It should however be seen in the full context of that particular matter. I therefore set out hereafter paragraphs 216 to 221 inclusive.216.As it was clear that inspection of the documents was being sought for the purposes of adducing evidence in a proceeding, and not simply for access to the documents, I indicated that I would provide reasons for rejecting the claims by Alexander, permitting inspection of the documents, as part of the reasons for judgment.217.Alexander gave no evidence that his notes recorded, or were connected with, any legal advice of a confidential nature given by him to the deceased, or any request made by the deceased to him for such confidential legal advice. Nor did he put forward any facts to establish that the production of, or the adducing of evidence about, the contents of the documents, would result in the disclosure of confidential communications or the confidential contents of the documents.218.Prior to determining the issue, I inspected the documents to determine the claim for privilege: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689; Hawksford v Hawksford [2005] NSWSC 796, per Campbell J (as his Honour then was) at [21]. I could see no basis, in the documents, to infer from the terms of each document, and in the absence of any evidence from Alexander, that they were connected in any way with the seeking, or giving, of confidential legal advice concerning the disposition of the deceased's property on his death.219.If that were not enough, the basis upon which at least some of the documents should be made available for inspection and for use in the proceedings, is s 54(1) of the Act, which provides that in the section a "will" relevantly includes a revoked will and a copy of a will. In s 3 of the Act, "will" includes a codicil and any other testamentary disposition. Section 54(2), relevantly, provides that a person who has possession, or control, of a will of a deceased person must allow persons within a number of different categories, including any person named, or referred to, in the will, whether as a beneficiary or not, any person named, or referred to, in an earlier will as a beneficiary of the deceased person, or issue of the deceased person, to inspect or be given copies of the will (at their own expense).220.It follows that any revoked will, or codicil, executed by the deceased is to be made available for inspection by applicants and thus no basis of privilege or confidentiality arises.221.In relation to the notes of instructions, it appears that the purpose of the notes was to record the deceased's instructions to his solicitor for the will or codicil to be prepared, which instructions were reflected by the relevant will or codicil that was subsequently prepared and executed. If legal advice was given, it was not recorded in the notes. In those circumstances it did not seem to me that the instructions remained confidential.”(Emphasis added)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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