Hall and Hall and Anor
[2016] FamCA 745
•6 September 2016
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
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
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.
The other party filed an Amended Notice of Objection objecting to the production and inspection of documents claiming legal professional privilege.
The husband in the proceedings disputed the claim of privilege.
Relevant documents
The Court received written submissions from counsel for the other party and the husband.
The other party relied upon the Amended Notice of Objection to the subpoena, his affidavits filed on 20 February 2014, 12 November 2015 and 29 July 2016 and the will of the wife’s late father dated 30 January 2009.
Counsel for the husband also referred to the will of the wife’s late father dated 30 January 2009 which had been the subject of another contested subpoena.
Hearing
At the hearing before me on 25 August 2016 the husband was represented by Mr Roder, SC (with Mr Jordan). The other party was represented by Mr Abbott, QC (with Mr Doyle). With the consent of the other parties and the Court, Mr Livesey, QC who appeared for the wife was excused whilst Ms Kari of counsel and her instructing solicitor remained present in Court. The wife did not wish to be heard on the issue of objection to the subpoena.
The Court received the written submissions and heard detailed oral submissions from counsel. During those submissions I directed the other party to provide to the Court the documents which are the subject of the objection. I viewed the original documents, compared them to the provided copies and returned the original documents to counsel for the other party. I heard further submissions from counsel. Obviously, counsel for the husband could not reply to the submissions made by counsel for the other party after I inspected the documents.
Relevant background
The husband and wife in these proceedings were married in 2001 and separated in 2013.
After the separation the wife commenced proceedings in October 2013. There are ongoing proceedings still outstanding in relation to both the children of the parties and financial matters.
There have been numerous interim applications and hearings.
Some of the previous interim hearings have related to the wife’s possible interest in the assets of her late father’s estate and connected entities.
Prior to the separation of the parties the wife’s father, Mr G S, died in 2009. Following the issue of subpoena to the wife’s mother and brothers, orders were made (which were the subject of appeal) requiring the production of the wife’s late father’s will.
The late father and the wife’s brothers were involved in the V Group of companies and trusts. It is the value of those entities and the wife’s interest therein which remains in dispute in the proceedings between the husband and wife in this Court.
The will of the wife’s late father dated 30 January 2009 is now before the Court. This will was prepared by Mr Simons of Simons Lawyers (the other party). The will is detailed and lengthy. It sets out bequests to the wife’s father’s wife and sons. One clause (number 14) refers to his daughter (the wife in these proceedings). There has been considerable dispute about the interpretation of the clause which refers to the deceased’s “wish” that the sons, as directors of the group of companies, do certain things including making arrangements for the group to pay large sums to the wife in these proceedings.
It is not appropriate in this judgment to make any findings or rulings concerning the interpretation of the will. This matter is raised because the subpoena seeks production and inspection of:
7.Any correspondence, notes, memoranda or other documents (including emails) received by you from the late [Mr G S] which provided instructions to you relating to the last will and testament signed by him on 16 November 2009 (“the 2009 will”) or in relation to any codicil or proposed codicil to the 2009 will.
8.All notes, memoranda, draft wills, correspondence (including emails), deeds, draft deeds or other documents prepared or drawn or drafted by you ([Mr Simons] the other party) relating to any instructions given to you by the late [Mr G S] with respect to the 2009 will or in relation to any codicil or proposed codicil to the 2009 will
Whilst the subpoena refers to a will signed on 16 November 2009 no issue was taken about this date. The will produced is dated January 2009. The wife’s father died in July 2009.
Following an interim hearing on 10 December 2015 I gave reasons and made orders on 10 March 2016. These were detailed specific orders concerning the subpoenas previously served upon the wife’s family members and the other party (Mr Simons).
An appeal has been lodged by the husband in relation to some of the orders I made on that date. The appeal has not yet been heard.
One of those orders (which is not subject of the appeal) provided for the other party to file and serve an Amended Notice of Objection in relation to items 7, 8, 9 and 10 specifically identifying the documents to which legal professional privilege is claimed and providing such documents in those categories for which privilege is not claimed.
Following the orders I made on 10 March 2016, the other party filed the Amended Notice of Objection. The annexure “A” to the Amended Notice of Objection contains the following description of each document for which privilege is claimed.
| No | Category (Item) of subpoena: | Date of Document: | Prepared by: | Identification of Document: |
| 1. | 8 | 27 January 2009 | Mr Simon (‘Simon) | Handwritten note (one page) in Simon’s handwriting headed “Conf Mr G S + MrS 27.1.09” recording provisions to be included in a new will of Mr G S. |
| 2. | 8 | 30 January 2009 | Simon | Typed File Note (3 pages) dated Friday 30 January 2009 marked “Subject: meetings between Mr G S and Mr Simon on 27, 29 & 30 January 2009 WILLS” summarising instructions given by Mr G S to Simon at meeting on 27 January 2009 and further instructions and discussions between Mr G S and Simon at meeting on Thursday 29 January 2009. |
| 3. | 8 and 7 | 30 January 2009 | Simon | Email (one page) dated 30 January 2009 12.21 pm from Simon to Mr G S marked “Strictly Confidential” advising Mr G S that Simon has made a confidential file note of what they discussed that week and the changes made in Mr G S’s new will. Reply email from Mr G S to Simon on 30 January 2009 at 12.30 pm thanking Simon for that email. |
The other party’s counsel maintains that the documents are protected by legal professional privilege. This is disputed by counsel for the husband. It is further submitted on behalf of the husband that if the documents were at one time subject to legal professional privilege, that privilege has been waived.
Application of the relevant law to the objections in this case
There was no issue that the common law requires that the person claiming the protection of the privilege has the onus of satisfying the Court that the communications made between the solicitor and the client were made for the dominant purpose of giving or obtaining legal advice. It was also accepted that the principle of legal professional privilege extends to cover documents recording communications between the solicitor and the client or relating to the information or advice provided that the communications and information so recorded were made for the dominant purpose of giving or obtaining legal advice.
Consideration has been given to all of the authorities referred to and cited by both counsel in this matter.
In particular Strahan & Strahan (2013) FLC 93-570 a Full Court decision sets out detailed reference to relevant cases concerning the onus of establishing the dominant purpose and waiver.
After referring to previous authorities and Cross on Evidence, 9th ed, LexisNexis, Chatswood, 2012 the Full Court’s judgment at paragraphs 30 and 31 states:
30.Further to the point made by the learned authors of Cross, it is instructive to look to what the Full Court of the Federal Court said in Barnes (at [16] and [18]) about the claim for privilege made in the affidavit in that case:
16.This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources. The further and better particulars of statement of claim furnished by the appellants refer to several different persons or entities who are said to have been originators of the documents. However, no evidence has been adduced from any of those persons. Most notable of all is the absence of any evidence from Mr Calder. In this context, the fact that Mr Barnes’ affidavit does not clarify the reason why any specific document came into existence means that the court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory.
…
18.The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallace (2004) 142 FCR 185 (Kennedy), Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant at CLR 689 (per Stephen, Mason and Murphy JJ). Where possible the court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is as manifestly inadequate as it is in this case. As in Kennedy, mere general assertions of the purpose of creation of the documents are insufficient to discharge this onus. Even though in that case some evidence as to the purpose of particular records was adduced, Allsop J at [168] considered that the onus had not been discharged because the evidence did not permit a conclusion to be drawn as to the dominant purpose of the creation of any particular document or entry in a document. Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.
(Bold emphasis added)
31.Consistent with those statements, Kirby J said in Daniels Corp v ACCC (2002) 213 CLR 543 (at 585):
The foregoing conclusion does not mean that a mere claim of legal professional privilege will be sufficient to attract the privilege. In the case of each communication alleged to be privileged the party making the claim must bring it within the applicable principles [Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49]. Legal professional privilege will not be available where a conclusion is reached that particular communications were not prepared for the dominant purpose of giving or receiving legal advice.
(Emphasis added. Footnotes omitted)
Counsel for the other party relied upon the comments of his Honour Justice McHugh at paragraph 44 of Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission (2002) 213 CLR 543 where his Honour said:
44.Australian courts have classified legal professional privilege as a fundamental right or immunity. Accordingly, they hold that a legislature will be taken to have abolished the privilege only when the legislative provision has done so expressly or by necessary implication. Legal professional privilege describes a person's immunity from compulsion to produce documents that evidence confidential communications about legal matters made between a lawyer and client or between a lawyer and a third party for the benefit of a client. The immunity also protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of a client, such as research memoranda. The immunity embodies a substantive legal right. Its operation is not limited to judicial or quasi-judicial proceedings. Where it applies, it may be used to refuse to produce documents that are the subject of a search warrant authorised by statute or other extra-curial process as well as a subpoena issued under or discovery required by rules of court.
Counsel for the husband referred to the decision of Justice Mansfield (as he then was) in Perazzoli v BankSA (No 2) [2016] FCA 260. Paragraphs 21 to 25 and 29 to 31 state as follows:
21.Common law principles govern the claims of privilege by the applicants and the Trustee, rather than ss 118 and 119 of the Evidence Act 1995 (Cth)(Evidence Act), as the issue before the Court is the inspection of documents produced in answer to subpoenas, not the admissibility of evidence: Esso Australia Resources v Federal Commissioner of Taxation (1999) 201 CLR 49 at [17] per Gleeson CJ, Gaudron and Gummow JJ and at [64] per McHugh J.
22.Legal professional privilege protects communications, not documents, although the exception to this proposition is that a document prepared with the dominant purpose of its being used as a communication with a legal adviser to obtain legal advice may be privileged even though it has not in fact been, and may never be, so used: Pratt Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 136 FCR 357 at [19] per Finn J (Pratt Holdings).
23.A communication will be protected by legal professional privilege where it was brought into existence for the “dominant purpose” of:
(a)giving or obtaining legal advice (sometimes described as “legal advice privilege”); or
(b)use in actual or reasonably anticipated legal proceedings (sometimes described as “litigation privilege”): Grant v Downs(1976) 135 CLR 674 at 677 per Barwick CJ (Grant v Downs); Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547 at [34]-[38] (Cadbury Schweppes).
24.In order to be the “dominant purpose”, the relevant purpose must be the “ruling, prevailing or most influential” purpose: Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ. It is not sufficient that the purpose is a “primary” or even a “substantial” purpose. Where two purposes are of equal weight neither is the dominant purpose. The “dominant purpose” must predominate over other purposes: the test is one of “clear paramountcy”: Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [7]; Melrose Cranes and Rigging Pty Ltd v Manitowoc Crane Group Australia Pty Ltd [2012] NSWSC 904 at [15] per S G Campbell JA; AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [44] per Young J (Cole).
25.The purpose for which a document was brought into existence is a question of fact to be determined objectively at the time the document is produced, having regard to the evidence and the parties’ submissions. The relevant purpose is the purpose as at the time the document is created (or, with a limited exception, when the communication is made): Cole at [44] per Young J; Barnes v Federal Commissioner of Taxation (2007) 242 ALR 601 at [5] (Barnes). Beach J said in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 at [32]:
Purpose can also be determined from the content of the document understood in its full context. Indeed, the latter analysis can carry greater weight, particularly over generalised hearsay or even compounded hearsay evidence from a person other than the author or person requesting the creation of the communication (document).
…
29.The applicants and the Trustee bear the onus of satisfying the Court that a communication is subject to legal professional privilege: Grant v Downs. The existence of legal professional privilege is not established simply by using a verbal formula or by mere assertion, either by way of affidavit or submission, that privilege applies to particular communications or that communications are undertaken for the dominant purpose of obtaining or giving “legal advice” or for use in actual or reasonably anticipated legal proceedings. There must be “focused and specific” evidence as to the purpose of the communication: See the remarks of the Full Court (Tamberlin, Stone and Siopis JJ) in Barnes at [18]. Young J said in Cole:
The existence of legal professional privilege is not established merely by the use of verbal formula: Grant v Downs at 689 per Stephen, Mason and Murphy JJ. Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving “legal advice”: National Crime Authority v S (1991) 29 FCR 203 at 211-212 per Lockhart J; Candacal Pty Ltd v Industry Research and Development Board (2005) 59 ATR 615; 223 ALR 284 at [70]; Seven Network Ltd v News Ltd [2005] FCA 142 at [6]-[8]. If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: Kennedy v Wallace (2004) 142 FCR 185 (Kennedy v Wallace) at [12]-[17] per Black CJ and Emmett J and at [144]-[145] and [166]-[171] per Allsop J; see also Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398.
30.Whether a solicitor and client relationship exists between two parties is to be determined by reference to the intentions of the parties, objectively ascertained. It is not essential that there be a formal, written or express retainer agreement; the existence of such a relationship can be implied or inferred. However, there must be a relationship of “trust and confidence” for a solicitor and client relationship to be implied or inferred: Brookfield at [19] per Finkelstein J. Even if no solicitor and client relationship exists, a communication can still be protected by privilege:
(a)if the communication is to a lawyer, it will be privileged if it is confidential and provided to the lawyer in his professional capacity, and otherwise a communication that would attract privilege: Brookfield per Finkelstein J at [20];
(b)if a communication is from a lawyer, it will be protected by privilege if it is given in pursuance of a request, whether express or implied, made of the lawyer “in his professional capacity”, or “if the circumstances are such that the “client” would reasonably expect to be given such advice”, but if the lawyer provides “unsolicited advice” to the “client”, the communication is not privileged: Brookfield at [20] and [21].
31.It is also common ground that, if only part of a document records a privileged communication, only that part of the document is protected by privilege, the document must be produced with the privileged portion of the document masked: Pratt Holdings at [3] per Kenny J.
Counsel for the other party maintained that in circumstances where a testator consulted a solicitor regarding a will there will be “a normal implication” that the solicitor will provide legal advice as to the effectiveness of the will “either expressly, or implicitly by the mere production of the will to the client”. It was thus argued that it therefore could be readily inferred that the dominant purpose of the communications preceding execution of the will was to seek and or give legal advice.
In this regard reference was made to the decision of the Full Court of the Federal Court in the matter of New South Wales v Betfair Pty Ltd (2009) 180 FCR 543. In that matter the Court considered a ruling in relation to the claim of privilege made by the NSW government for documents in the possession of Parliamentary Counsel. To understand the comments of the court in that matter the following paragraphs should be considered:
15.The relationship between the State and Parliamentary Counsel may be one of client and lawyer: see Waterford v Commonwealth (1987) 163 CLR 54, 60-2per Mason and Wilson JJ. If advice were sought of and given by Parliamentary Counsel in relation to the drafting and preparation of draft legislation, this would qualify for legal advice privilege: see Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at 652[41]; and Workcover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502 at 521 [74]. This seems to be accepted by the parties.
16.The question then arises as to the scope of the retainer between the State and Parliamentary Counsel in circumstances where Parliamentary Counsel is asked to prepare draft legislation. The scope of a retainer may not be confined to the client’s express instructions. Matters which would reasonably arise in the course of carrying out express instructions should be regarded as coming within the scope of the retainer.
17.For instance, in the case of drafting wills, a solicitor would be obliged to give advice to ensure that the client understands and agrees to the provisions of the will: see Morrell v Morrell (1882) 7 P.D. 68 at 72-4 per Hannen P. In some circumstances, the solicitor will need to give advice on matters not requested to advise upon. Thus, if a solicitor knows that his client is about to marry, he may need to advise the client of the law where the law provides that the will is revoked on marriage unless expressly made in contemplation of marriage: see eg Hall v Meyrick [1957] 2 QB 455, 2 All ER 722. Therefore, a retainer simply to draw a will involves necessarily the providing of advice, at least as to its validity and effect. In providing the finally drafted will to the client, the solicitor is effectively saying the will complies with the law and gives effect to the client’s instructions.
(Emphasis added)
18.A contrary position has been adopted. In Tickell v Trifleska (1990) 24 NSWLR 548, Rogers CJ in an ex tempore ruling, without the citation of authority, concluded that a letter giving instructions for the preparation of a will was not privileged.
19.His Honour said (at 549):
Mr Emmett submits that the letter from the second defendant to Mr Wagland constitutes communication to a solicitor with a view to obtaining legal assistance. This is by reason of the fact that, on his argument, when instructions are given to a solicitor for the preparation of a will, there is implicit in those instructions a request, ‘for advice on what is the proper form of the will’.
For myself, I am not prepared to draw that implication. While there may be circumstances in which there is a request for advice of that nature, further factual material, which is not available in the present case, would be required before a court would be prepared to draw the implication sought by Mr Emmett.
20.In our view, Rogers CJ did not approach the matter correctly. One would normally draw the implication that the solicitor will provide legal advice as to the effectiveness of the will, either expressly, or implicitly by the mere production of the will to the client.
(Emphasis added)
The Full Court also made reference to the dominant purpose (paragraph 23).
It is impossible to disentangle the creation of the draft legislation and the giving of advice in these circumstances. It is not a matter of there being multiple concurrent purposes.
It was not contested that the appropriate starting point when considering the dominant purpose test is to determine the intended use or uses of the document at the time it was created (Pratt Holdings Pty Ltd v Commission of Taxation (2004) 136 FCR 357).
The Full Court also referred to the question of waiver relying upon Mann v Carnell (1999) 201 CLR 1. In paragraph 53 it is stated:
53.The test for waiver, formulated by the High Court in Mann v Carnell (1999) 201 CLR 1, is one of inconsistency test, “where necessary informed by considerations of fairness”. According to the majority in Mann 201 CLR at 13 [29]:
“Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect …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.”
(Emphasis added by the Full Court of the Federal 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)
In this matter the Court has the affidavits of the solicitor setting out the background to the creation of the documents, including his assertion that the notes were confidential and related to the instructions given by the client for the purpose of seeking legal advice and for the purposes of the solicitor providing legal advice which related to the preparation of his will. (See affidavit of the other party filed on 29 July 2016).
Counsel also referred to the decision of Justice Ann Lyons of the Supreme Court of Queensland in Nolan v Nolan & Ors [2013] QSC 140 a 2013 decision which included detailed discussion of the authorities, and in particular paragraphs 28 and 29:
[28]I also note that Kennedy v Wallace indicated that legal professional privilege extends to documents prepared for the dominant purpose of obtaining advice even though they do not constitute communications. It is clear that where legal advice is involved, the privilege also extends to all of the peripheral aspects of the matter, even though some might not, in isolation, be concerned with the communication of strictly legal advice. In Adamas v O’Connor Gilmore J held that the privilege extends to the instructions to the lawyer:
“12. The privilege attaches to confidential communications between a party and his or her legal adviser, in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court: Esso Australia Resources at 35. A communication for the dominant purpose of obtaining legal advice or obtaining or providing legal services attracts privilege: Esso Australia Resources at [61]. The privilege extends to documents that record confidential legal advice or confidential legal advice or confidential legal work, and to any document prepared by the lawyer or client from which the nature of the advice may be inferred: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1996] HCA 3; (1997) 188 CLR 501 at 569, per Gummow J. The principles and cases are discussed by Young J in AWB Limited v Cole [2006] FCA 571; (2006) 152 FCR 382 at [127]- [132]. The advice from and the request for advice to the lawyer are privileged: Bolton v Liverpool Corporation [1833] EngR 409; (1833) 1 My & K 88 at 94; [1833] EngR 409; 39 ER 614 at 617.
13.When the relevant communication is set out in a document, the use made of a document is not determinative. The test is “anchored to the purpose for which the document was brought into existence”: Propend Finance Pty Ltd at 508 per Brennan CJ. A compendious statement of the classes of documents to which privilege will attach was given by Lockhart J in Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244. Relevantly, they include not only the communication between a party and his or her legal adviser, including any note or record of that communication, but documents that would reveal the knowledge, information or belief of a client derived from privileged communications. The relevant question is “what was the intended use or uses of the document which accounted for it being brought into existence”: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at 366. The purpose for which a document is brought into existence is a question of fact to be determined objectively.”
[29]Accordingly, as I have indicated, I am satisfied that the documents sought were brought into existence for the dominant purpose of obtaining legal advice and that they record confidential communications between the second and third defendants and their legal advisor in connection with giving or obtaining legal advice.
On behalf of the husband it was submitted that the other party had explicitly and implicitly made assertions in his three affidavits which are inconsistent with the maintenance of the privilege and therefore any privilege has been waived.
The subpoena the subject of this determination was to the other party, the solicitor who drafted the will for the deceased.
Counsel for the other party relied upon the decision of Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 96 and in particular paragraphs 32 to 37. That authority indicates that the legal professional privilege attaching to documents is not “waived” or “lost” upon the death of the client. The benefit of privilege is maintained by the executor and trustee of the deceased estate, his son Mr C S.
The privilege claimed has not been waived by Mr C S.
The affidavits filed by the other party contain the solicitors’ objections to these subpoenas. Following the specific orders of the Court made on 10 March 2016 the further affidavit was filed.
It is maintained that the affidavits that he has filed explicitly and implicitly waive the privilege claimed. The other party however does not have the capacity to waive the privilege once held by the deceased and now held by the executors of his estate.
I am satisfied that the documents the subject of the objection are documents setting out the communications between the deceased (Mr G S) and the other party. I am further satisfied that the documents were brought into existence at the time for the dominant purpose of the deceased seeking legal advice and for the dominant purpose of providing such legal advice. Having examined the documents I am satisfied that there is no other purpose which might impact upon the dominant purpose (namely, for obtaining legal advice in relation to preparation of a will and the legal advice given in relation to the same).
Even though some of the notes record communications after the actual signing of the will these are nonetheless documents created for the dominant purpose of recording the discussions that had taken place when the other party provided the deceased with advice in relation to his will.
The affidavits filed by the other party do not indicate that the executor of the deceased estate (Mr C S) ever gave instructions to the other party which could be instructed as waiver of the privilege. It is clear from the affidavits of the other party that the contrary applied, namely, that he did not at any time receive instructions from the deceased nor the executor of the deceased estate to waive privilege.
The affidavits filed by the other party provide evidence of the circumstances in which the documents were created. In particular, the last affidavit provides sufficient evidence upon which to base the claim for privilege. It does not exceed this requirement and is therefore not to be interpreted as any implicit or explicit waiver.
Conclusion
I am therefore satisfied that the other party has established the basis for the legal professional privilege in relation to the documents referred to in the Amended Notice of Objection and that the legal professional privilege so established has not been waived. I therefore uphold the objections of the other party and dismiss the subpoenas in relation to items 7 and 8 being those documents referred to in annexure “A” of the Amended Notice of Objection.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 6 September 2016.
Associate:
Date: 6 September 2016
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