Harlen and Hellyar (No. 4)

Case [2020] FamCA 600

FAMILY COURT OF AUSTRALIA

HARLEN & HELLYAR (NO. 4) [2020] FamCA 600
FAMILY LAW – LEGAL PROFESSIONAL PRIVILEGE – alleged waiver – whether privilege applies in the first place – implied waiver by conduct allegedly inconsistent with maintaining the privilege – whether such inconsistent behaviour demonstrated in the facts of this case.
Evidence Act 1995 (Cth), ss 118, 122
Evidence Act 2008 (Vic), s 122(2)
Family Law Act 1975 (Cth), s 90UC
Attorney-General (Northern Territory) v Maurice (1986) 161 CLR 475
Baker v Campbell (1983) 153 CLR 52
Banks & Banks [2015] FamCAFC 36
Bilal v Omar (2015) 53 Fam LR 121
Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341
Deiter & Deiter [2011] FamCAFC 82
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499
Eaby & Speelman [2015] FamCAFC 104
Hall v Hall (2016) 257 CLR 490
Harlen & Hellyar (No. 2) [2020] FamCA 413
Harlen & Hellyar [2020] FamCA 21
Harris v Caladine (1991) 172 CLR 84
Mann v Carnell (1999) 201 CLR 1
Marvel v Marvel (2010) 43 Fam LR 348
Redmond & Redmond [2014] FamCAFC 155
Rocacelli v Seles [2019] FamCA 105
Salah & Salah (2016) 56 Fam LR 299
SS & AH [2010] FamCAFC 13
Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
Vic Hotel Pty Ltd v DC Payments Australasia Pty Ltd (2015) 321 ALR 191
Viterra Malt Pty Ltd v Cargill Australia Ltd (2018) 58 VR 333
Paul D. Finn, Fiduciary Obligations (Law Book Company, 1977)
Ahmed Terzic, Implied Waiver of Legal Professional Privilege: A Search for Consistency (2018) 45 Australian Bar Review 287
APPLICANT: Ms Harlen
RESPONDENT: Mr Hellyar
FILE NUMBER: MLC 13634 of 2017
DATE DELIVERED: 24 July 2020
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: The Honourable Justice Wilson
HEARING DATE: 7 & 20 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. St John QC
SOLICITOR FOR THE APPLICANT: Peter Szabo Family Law
COUNSEL FOR THE RESPONDENT: Mr P. O'Shannessy SC
SOLICITOR FOR THE RESPONDENT: Mann Lawyers

Orders

  1. I dismiss the respondent’s application on 7 July 2020 in relation to the waiver of legal professional privilege.

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 Harlen & Hellyar 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 MELBOURNE

FILE NUMBER: MLC 13634 of 2017

Ms Harlen

Applicant

And

Mr Hellyar

Respondent

REASONS FOR JUDGMENT

Introduction

  1. An issue has arisen in this proceeding about whether legal professional privilege has been waived.  For ease of reference, it…

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Details
AGLC
Harlen and Hellyar (No. 4) [2020] FamCA 600
Case
[2020] FamCA 600
Decision Date

CaseChat Overview and Summary

The Honourable Justice Wilson of the Supreme Court of Victoria considered an application by the respondent concerning the waiver of legal professional privilege. The applicants, Harlen and Hellyar, were involved in proceedings where the respondent sought to access certain documents.

The central legal issue before the Court was whether the respondent had successfully demonstrated that the applicants had waived their legal professional privilege over specific documents. This involved an assessment of the conduct of the applicants and the circumstances surrounding their communications.

Justice Wilson dismissed the respondent's application, finding that the threshold for establishing a waiver of legal professional privilege had not been met. The Court applied the established legal principles governing waiver, which typically require clear and unequivocal conduct by the privilege holder indicating an intention to abandon the privilege. In this instance, the Court concluded that such conduct was absent.

Orders

Orders of the court

1.

I dismiss the respondent’s application on 7 July 2020 in relation to the waiver of legal professional privilege.

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

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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