Hawkins and Hawkins
[2014] FCCA 1071
•4 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAWKINS & HAWKINS | [2014] FCCA 1071 |
| Catchwords: FAMILY LAW – Practice and procedure – evidence – subpoena – notice of objection – legal professional privilege – implied or express waiver – error of fact asserted by wife. |
| Legislation: Evidence Act 1995 (Cth), ss.81, 87, 117, 131, 135, 136 |
| Mark & Messina [2009] FamCA 1021 KC & Ors & Shiley Incorporated & Anor [1997] FCA 617 Brown & Commissioner of Taxation (2001) 187 ALR 714 Switchcorp Proprietary Limited & Ors & Multiemedia Limited [2005] VSC 425 British American Tobacco Australia Services Limited & Cowell [2002] 7 VR 524 Ampolex Limited & Perpetual Trustee Company (Canberra) Limited & Ors (1996) 137 ALR 28 Bell & Bell [2009] FMCAfam 595 Donoghue & Stevenson [1932] AC 562 Dargan & Chesnik [2010] FMCAfam 726 Osland & Secretary to the Department of Justice [2008] HCA 37 Campbell & United Kingdom (1992) 15 EHRR 137 Foxley & United Kingdom (2001) 31 EHRR 25 Bennett & Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 Harman & Secretary of State for the Home Department [1983] 1 AC 280 Books cited: |
| Applicant: | MR HAWKINS |
| Respondent: | MS HAWKINS |
| File Number: | CAC 1818 of 2013 |
| Judgment of: | Judge Harman |
| Hearing dates: | 2 and 4 April 2014 |
| Date of Last Submission: | 4 April 2014 |
| Delivered at: | Canberra |
| Delivered on: | 4 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Warren |
| Solicitors for the Applicant: | Andrew Warren Associates |
| Counsel for the Respondent: | Mr Rideaux |
| Solicitors for the Respondent: | Clark Rideaux |
ORDERS
The Subpoena addressed to Graeme Hal Blomfield trading as Blomfield Solicitors filed 17 February 2014 is struck out.
IT IS NOTED that publication of this judgment under the pseudonym Hawkins & Hawkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
CAC 1818 of 2013
| MR HAWKINS |
Applicant
And
| MS HAWKINS |
Respondent
REASONS FOR JUDGMENT
These are proceedings with respect to Part VIII financial relief between the parties Mr Hawkins, who is the Applicant and husband to the marriage founding jurisdiction, and Ms Hawkins, the Respondent and wife.
The proceedings were commenced by an Application filed 18 November 2013.
A Response was filed on 3 February 2014.
Consistent with the Federal Circuit Court Rules 2001 together with each of the Application and Response, an Affidavit and Financial Statement were also filed.
It is clear and apparent from the affidavits filed by each of the parties that issue arises as to the existence of an equitable interest by one or both parties in properties of which they are not the registered legal proprietor.
The proceedings first came before the Court on 5 February 2014. On that date, proceedings were adjourned to 7 May 2014 and an order made for the parties to arrange and attend private financial mediation to occur on or before 1 April 2014. The parties have advised that there has been some slight delay in that mediation being arranged but it will occur prior to the next Court event, 7 May 2014.
The proceedings came into the list on 2 April 2014 as a consequence of a Notice of Objection filed by the wife’s attorneys with respect to a subpoena, which subpoena had been issued at the request of the husband’s attorneys on 17 February 2014.
The subpoena is addressed to “Graham Hal Blomfield, trading as Blomfields Solicitors”. Mr Blomfield had previously, and prior to the commencement of these proceedings, been retained by the wife as her attorney.
The subpoena by its terms seeks the production of:
1.A copy of the subpoena;
2.Your entire file in relation to Ms Hawkins, also known as Ms Hawkins, relating to family law advice given to her with respect to her husband, Mr Hawkins;
3.All correspondence, including email communications to and from Ms Hawkins, also known as Ms Hawkins, in relation to her family law entitlements with respect to her husband, Mr Hawkins;
4.All correspondence or records of communication between your firm and Ms Hawkins, also known as Ms Hawkins, in relation to her termination of your instructions in relation to her family law matter regarding her husband, Mr Hawkins;
5.All correspondence or records of communication between your firm and Ms Hawkins, also known as Ms Hawkins, in relation to her ownership of the property located at Property P, New South Wales.
The Notice of Objection filed asserts an objection in the following terms:
I object to the production of items 2 to 5 in the schedule. Legal professional privilege is claimed under lawyer/client confidentiality. Oral submissions will be made if required.
Thus, the issue that is to be determined at this time is confined solely to the objection to the subpoena and, thus, whether a valid objection is made out or whether the objection is not made out and inspection is permitted.
Material considered
In these proceedings, I have read and considered each of the following documents:
a)The Affidavit of Mr Hawkins sworn or affirmed 14 November 2013;
b)The Affidavit of Ms Hawkins sworn or affirmed 29 January 2014;
c)The Notice of Objection and attached subpoena;
d)The Applicant’s outline of submissions on objection to subpoena.
I have also had regard to the oral submissions of each of the parties as put to the Court on 2 April 2014.
The husband asserts that the objection is not properly made out, in that there has been a waiver, express or implied, by the wife of her right to legal professional privilege and thus an entitlement to inspection arises.
It is submitted, and a number of authorities are relied upon with respect to the contention, that the provisions of the Evidence Act 1995 (Cth) relating to such privileges, commencing at section 117 thereof, do not apply to the determination. It is submitted that common law considerations apply on the basis that it is not sought, at this time, to introduce material into evidence which would be governed by privilege, (and the exceptions thereto are set out in the Evidence Act), but merely an inspection of material. That is a submission which finds favour in a number of the authorities to which I have been referred and with which I do not cavil. However, some issue also thus arises as to the purpose and nature of inspection. They are not matters which need necessarily trouble me to any great extent today.
The wife, for her part, denies that she has waived legal professional privilege expressly or impliedly at any time.
To deal with the matter, it is necessary to address and canvass a number of provisions with respect to evidence and the Evidence Act, and I turn to those now.
Settlement negotiations and evidence thereof
Section 131 of the Evidence Act, which I incorporate herein, provides that
(1) Evidence is not to be adduced of:
(a)a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b)a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
Sub-section (2) provides a number of exceptions.
The issue that arises in these proceedings arises within the context of written communication between the then attorneys for the parties, Mr Blomfield’s office and the husband’s present attorneys, regarding settlement negotiations. The husband annexes to his material a copy of a letter dated 21 August 2013 being from his attorneys to Ms Hawkins’ attorneys and setting out a number of settlement proposals. The communication states, at its penultimate paragraph:
Our client’s proposed settlement is a very significant compromise of his position.
By reference to the authorities to which I have been referred as regards implied waiver of legal professional privilege and particularly by reference to one of the authorities relied upon in the husband’s case, being a decision of Cronin J in Mark & Messina [2009] FamCA 1021, that statement, by and of itself, might be suggested, consistent with submissions in the husband’s case, to represent an implied waiver of legal professional privilege referring as it does, inferentially if not otherwise, to the proposal having been formulated in accordance with advice. However, I need take that issue no further, other than to note its consistency with the submissions put.
In response to that correspondence, expressly stated to be so, a letter was forwarded by Blomfields Solicitors, then retained by the wife and as to which there is no controversy, to the husband’s solicitors. That correspondence is dated 4 September 2013 and commences:
We refer to your letter 21 August 2013. We are instructed to reply as follows.
That statement is the most significant area of controversy with respect to the factual background of this matter.
The letter then goes on to state, under a heading “(Property P)” being the property in which it is asserted the wife has an equitable interest:
We accept that our client has an equitable interest in this property. We do not accept the estimated value.
Two issues arise therefrom. Firstly, the grammatical construction of the sentence makes it difficult to ascertain whether the assertion under the pronoun “we” is intended to refer to the attorneys in the third person or to the attorneys and their client collectively. Secondly, the wife simply denies that any such instruction was ever given by her to her attorneys, i.e., that she had any interest in that property.
The correspondence from the wife’s former attorneys, September 2013 is clearly headed “Without Prejudice Save as to Costs”. In those circumstances, it would be difficult to agitate for any conclusion other than that the correspondence is correspondence or communication between the parties, in this case, the attorneys for the parties, in an attempt to negotiate a settlement of a dispute. Thus, I am satisfied that section 131 of the Evidence Act applies to that correspondence as annexed to the parties’ materials, that is, that both the letters, annexure A and annexure B thereto and indeed annexure C, correspondence from the wife’s present attorneys to the husband’s attorneys, would be evidence which could not be adduced, representing, as it does, clear communication in an attempt to negotiate a settlement of the dispute, save and unless one of the exceptions in subsection (2) applied.
In turning to those exceptions, the only one which might be argued to apply is that contained in subsection (g) of the Evidence Act, being:
...evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the Court unless evidence of the communication or document is adduced to contradict or to qualify that evidence.
In dealing with that position, I note the comments of Tamberlin J in KC & Ors & Shiley Incorporated & Anor [1997] FCA 617, an unreported decision of the Federal Court of Australia dealing with a determination regarding the subsection (g) exception. Therein, and in declining to hold that the Court would be misled unless the privilege were removed, His Honour observed:
...the material placed before me does not indicate that the Court may be misled in this proceeding unless evidence of any specific communication or document is adduced to contradict or qualify the applicant’s evidence. Any assumption to this effect is purely speculative. This claim for access is based on a possibility that there may be some material to support an allegation that the Court may be misled.
Similarly, Emmett J in Brown & Commissioner of Taxation (2001) 187 ALR 714 and as referred to and quoted in Stephen Odgers, Uniform Evidence Law, 9th edition, 2010 at page 718, as paraphrased by Odgers, rejected a submission that the exception applied in any case where the evidence sought to be adduced simply contradicts or qualifies evidence already adduced.
Odgers also refers to the decision of Adams J in Kosciusko Thredbo Proprietary Limited & New South Wales [2002] NSWSC 329 wherein His Honour held that:
Section 131(2)(g) refers to evidence adduced in the substantive proceedings, not just on the voir dire.
The most contentious portion of the wife’s evidence, which will be canvassed in more detail, is paragraph 11 of her Affidavit. It responds to paragraph 17 of the husband’s Affidavit. Paragraph 17 of the husband’s Affidavit states:
On 4 September 2013 the Respondent’s then solicitors wrote to my solicitors. Annexed hereunto and marked with the letter B is a copy of the first page of that letter. Relevantly, in relation to the Property P property, that letter reads as follows –
and repeating the portion of the letter already referred to.
I note that the correspondence clearly is part of a chain of attempts between the parties through their attorneys to negotiate a settlement. Thus, the entirety of the document, not only the portion of it annexed to the husband’s material, must be considered. Whilst the whole letter is not before the Court, clearly it is a portion of a settlement negotiation.
The wife in response to paragraph 17 of the husband’s Affidavit says:
Paragraph 17 is agreed.
That is the wife agrees that the letter was written.
I do not infer that the wife’s statement of agreement to paragraph 17 does more than concede the annexing a portion of and reciting a portion of a piece of correspondence. I do not accept that it can or should be taken as an admission against interest as to the truth of the contents of statements in the letter.
The wife’s evidence in the relevant paragraph then continues:
However, the statement from my former solicitor quoted in this paragraph is wrong. I instructed Blomfields in accordance with paragraph 9 above.
That portion of the wife’s evidence denies any equitable interest in the property.
The wife continues in paragraph 11:
When I became aware of the contents of this letter I sacked Blomfields, as they had acted contrary to my instructions.
I accept that what is clear, by reference to section 131 of the Evidence Act, is that the correspondence, annexures A and B to the husband’s Affidavit is material that represents evidence that is not to be adduced in proceedings. To that extent, it is not properly before the Court. Thus, I am satisfied that the material by the wife rejecting that which is not properly before the Court can and should also be disregarded. However, lest I am wrong in that regard, I propose to deal with the matter on a number of other bases.
Admissions against interests
Admissions are dealt with by the Evidence Act commencing at section 81 thereof. That section makes clear in subsection (1) that: “The hearsay rule and the opinion rule do not apply to evidence of an admission”. However, I am not satisfied that the statement by an attorney retained by a party, even if expressed on instruction, could properly constitute “an admission” that would be admissible pursuant to section 81 of the Evidence Act. To that end, I have some comfort that section 87 of the Evidence Act provides for that circumstance. It provides, with respect to admissions made with authority (in this case authority arising from instruction), as follows:
(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:
(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made.
The husband asserts that the representation made in the subject correspondence, even if it were found to be properly before the Court, is thus an admission against interest by the wife. Thus, it would follow that any reference by the wife to that admission, so it is submitted, would be an express or implied waiver of legal professional privilege.
The difficulties with that proposition are numerous.
Firstly, I must be satisfied that the representation is made by a person with “authority” to make it. It is to be noted that, as is often remarked, an attorney is a creature of instruction. If a solicitor is acting in accordance with instruction – and the correspondence, annexure B, commenced by purporting that it is so – clearly, an attorney would have authority to make a representation on behalf of a client. However, in this case, and dealing with the evidence on its face, the wife puts significantly and seriously in issue the above proposition. Indeed, the wife asserts that the correspondence that was forwarded was entirely contrary to her instruction and thus, that she took the prompt action immediately upon becoming aware of the correspondence, of dismissing her attorneys and terminating their retainer. That portion of the wife’s evidence is clearly corroborated by her actions. She is no longer represented by that firm and, it would seem, within a very short space of time after the correspondence that had been forwarded by them, had retained her present attorneys.
On the above basis, I am not and cannot be satisfied that the contents of annexure B, even if properly before the Court, represent an admission by the wife. That would have some relevance, circular as it may seem, to whether an exception pursuant to section 131(2)(g) of the EvidenceAct is made out or not. It most assuredly, on the basis of the wife’s evidence, taken at its highest – and I accept and am satisfied that this is how the matter should be dealt with, as an interlocutory process – that the representation was not made with the wife’s knowledge, let alone authority, she asserting that it was entirely contrary to any instructions she had provided.
Further, and lest I am wrong with respect to the above interpretation as to the interaction of sections 81 and 87 of the Evidence Act, I note that any determination by the Court as to the admission of such evidence would be subject to sections 135 and 136 of the Evidence Act, the general discretion to exclude evidence or limit its use when it is considered to be unfairly prejudicial, misleading or confusing or cause or result in an undue waste of time.
I am satisfied, on the basis of the wife’s evidence, that a number of matters would flow if such evidence were admitted. I hasten to add at this point that the issue I am asked to determine is whether access is granted to material, not whether the material to which access is sought is to be admitted. However, I am conscious to focus at this point upon the correspondence which is annexed to the husband’s material and its admission as, failing its admission, there is no basis for the latter proposition regarding waiver of legal professional privilege to follow.
The evidence which is sought to be adduced, I am satisfied is unfairly prejudicial to the wife. She asserts that she simply never gave instruction for the statement to be made. Further, the wife has not given any evidence, directly or inferentially, that she had received advice to that end, that is that she held or might validly be suggested to hold an interest of any nature in that property.
I am also conscious, if the correspondence were admitted, that would:
a)Result in the need to deal with and address the extent to which the wife had waived legal professional privilege and thus the extent to which inspection of material might arise;
b)Require the wife (or the husband) to adduce evidence with respect to that contested fact from the wife’s former attorney; and
c)Result in a significant expansion of issues in dispute, which ultimately, and for reasons which I will elaborate upon, is of no real assistance to the Court.
For all of those reasons I am satisfied that I should not admit the correspondence, annexures A and B to the husband’s material, (if not excluded by reference to section 131 of the Evidence Act), as it would fall foul of the general discretion to exclude or limit evidence as referred to.
Waiver of legal professional privilege
In the husband’s case, I am referred to a significant number of authorities. Other authorities will also be addressed by me. The four principal authorities, other than the High Court’s decision in Mann & Carnell (1999) 201 CLR 1, relied upon, comprised the following.
I am referred to Mark & Messina, the decision by Cronin J to which I have referred. I note that this is a single Judge decision and thus not binding upon me, although clearly persuasive. Indeed, I make very clear that I consider Cronin J a far greater jurist than I and thus would be greatly persuaded by any argument by him or any reasoning he has expressed. However, I note with respect to His Honour’s decision that the finding of an implied waiver of legal professional privilege can be distinguished from the circumstances in this case.
Two of the particular issues that arise in this regard are:
a)The suggestion on the evidence and as found by His Honour that the wife had impliedly and voluntarily waived legal professional privilege by referring to her reliance upon, and thus opening the door to disclosing the advice given to her by her attorneys;
b)His Honour was of the view that the leave to be granted to inspect material would be somewhat more limited than the entirety of the file. A discussion occurred with respect thereto and His Honour, whilst granting leave, limited it to the specific issue which was in dispute. That, of course, is not that which is sought by the subpoena in this case.
In this case it is to be noted that the wife’s evidence in paragraph 11 of her Affidavit, even if it were admitted into evidence, does not refer to any advice given to her by her attorneys. Her statements relate purely to an inaccuracy in the correspondence forwarded by her then retained attorneys, the assertion being that it was without instruction (notwithstanding the assertion within the correspondence that it was so). It might be argued that the issue as to whether the wife held an equitable interest in a property is or must of necessity be or have been the subject of legal advice. However, from the evidence that is relied upon by either party it is in no way express or implied.
Reliance is placed upon the Supreme Court of Victoria’s decision in Switchcorp Proprietary Limited & Ors & Multiemedia Limited [2005] VSC 425. I concur with the rationale expressed by His Honour in that case and appropriately so, that being a decision of a superior Court. However, the facts and circumstances of the case can clearly be distinguished from this case, in that there was a clear and express voluntary publication of the very advice which it was then sought to assert privilege with respect to.
I am not satisfied that there is any express waiver of any confidence as between the wife and her former attorneys in this case other than the wife’s assertion that the statement made by her then retained attorneys was entirely without her instruction. Whelan J in that decision had indicated at paragraph 12 thereof:
Each case must be decided on its own facts applying the general principles to which I have referred. Notwithstanding that the cases which have dealt with like circumstances to those existing here seem to me to support the following general propositions.
His Honour having previously discussed a line of authorities, including: British American Tobacco Australia Services Limited & Cowell [2002] 7 VR 524, Ashfield Municipal Council & Roads and Traffic Authority of New South Wales [2004] NSWSC 917, Goldberg & Ng (1995) 185 CLR 83, Attorney General for the Northern Territory & Maurice (1986) 161 CLR 475 and Mann & Carnell (1999) 201 CLR 1.
His Honour then makes the following statement:
A statement which reveals the content of legal advice, even if it does so in a summary way or by reference only to a conclusion, will, or probably will, result in a waiver.
His Honour then referred to the High Court’s decision in Ampolex Limited & Perpetual Trustee Company (Canberra) Limited & Ors (1996) 137 ALR 28. Again, what is clear in this case is that the wife has made no reference, expressly or impliedly, to “legal advice” sought or provided to her. All that she has asserted is that the opening assertion contained within correspondence forwarded by her then retained solicitors was not on her instructions and contrary to her instructions. I do not accept that this statement by and of itself, as contained in paragraph 9 of the wife’s Affidavit, could be interpreted as importing or implying the disclosure by her of “advice” that she had sought or received.
A decision of my brother Federal Magistrate Burnett, as he then was, in Bell & Bell [2009] FMCAFam 595 is relied upon. His Honour had, in that decision, undertaken a most thorough, comprehensive and erudite discussion of the relevant authorities and which discussion has been of great assistance with respect to the issue. However, the facts and circumstances of that case are again distinguished from this. In the case before Judge Burnett there was clearly an implied, if not express, disclosure of legal advice.
In this case there is no such disclosure of legal advice simply the mere assertion by the wife that the document sent by her former attorneys is wrong and contrary to or absent her instruction. They are matters of great significance, perhaps, as regards Donoghue & Stevenson [1932] AC 562 and such professional negligence actions as may be prosecuted by the wife against her former attorneys, but could not be taken to infer or imply a waiver by the wife of legal professional privilege as regards advice she has sought or received.
Finally, a decision of Federal Magistrate Demack, as she then was, in Dargan & Chesnik [2010] FMCAfam 726 is relied upon. That case again is distinguishable to the extent that Her Honour found a clear disclosure of legal advice and thus express waiver of legal professional privilege. The wife has never referred to having received advice, let alone what it may have been or acting upon it.
In turning to other authorities, including those which are relied upon and eruditely considered by my brother and sister Federal Magistrates (as we then all were) as above, I have read and considered the High Court’s decision in Mann & Carnell.
It was submitted in the husband’s case that the authority remains binding and I accept that submission. That authority was canvassed in some detail, together with many others, by a High Court constituted in Osland & Secretary to the Department of Justice [2008] HCA 37. Their Honours there were dealing with a Freedom of Information Act 1982 (Cth) application rather than access being sought to material to be produced on subpoena. I accept, however, that their Honours’ dictum is of great assistance in this case.
Kirby J noted at paragraph 83:
Privilege belongs to the client, not to the lawyer. A client concerned about a legal question is protected in seeking [legal] advice on that question. The protection extends to communications between the client and the lawyer. It upholds the facility of candid, confidential exchanges, essential to the provision of accurate and effective legal counsel.
That is a basic proposition that counsel for neither party sought to cavil with.
It was otherwise noted by Kirby J at paragraph 81, Kirby J agreeing with the decision of the majority, that:
This Court has affirmed that such privilege, [being legal professional privilege], is an important civic right. It is a substantive right and not simply the consequence of a rule of evidence law. It protects a very important entitlement in our society by which anybody may seek and obtain legal counsel in the confidence that communications with a lawyer and documents produced for or in consequence of such communication will not normally be disclosed without the affected client’s consent.
In paragraph 82 it continues; “In the case of natural persons, legal professional privilege has been described as a basic human right” – His Honour then referring to and footnoting in support of that proposition decisions of Campbell & United Kingdom (1992) 15 EHRR 137 and Foxley & United Kingdom (2001) 31 EHRR 25, respectively.
With respect to the issue of privilege and its implied waiver, Kirby J dealt with that issue commencing at paragraph 90. He noted:
It was common ground that the extent of any waiver of legal professional privilege, and the effect of such waiver, were, in this case, to be decided according to the common law.
Thus, as indicated at the outset of these reasons, I do not cavil with and wholeheartedly accept submissions of counsel for the husband in that regard.
Kirby J continues at paragraph 93:
In deciding what the law requires, a court considers the supposed waiver in the context of all of the relevant circumstances. What is normally involved (as here) is a question of fact and degree. The search is not for the actual or imputed intention of the party said to have waived its privilege. It is a search for the objective consequence of that party’s conduct in revealing some, but not all, of the particular legal advice.
Again, what is clear in this case is that the wife has not sought to disclose, inferentially or otherwise, either the advice she has sought, the advice she has received or the action she has taken in reliance thereupon. I do not believe that it is a step justified in the circumstances for me to take the reference in correspondence to a legal concept, “an equitable interest in property”, and its assertion and denial as reflective that the wife has received advice or that she has sought to disclose that advice.
Irrespective of whether I am correct with regard to the above, I am particularly concerned that the issue in dispute in this case, as Kirby J referred to, the context of the relevant circumstances in this case, is the wife’s assertion that the correspondence which is relied upon as constituting an express or implied waiver of legal professional privilege:
a)Is suggested simply to be wrong. The wife does not seek to put before the Court any discussion she has had with her attorneys in providing instruction or in receiving advice. She simply states that the letter was sent either inconsistent with or absent her instruction and that, immediately upon becoming aware of that circumstance, she has terminated their retainer;
b)By the use of a legal term, “equitable interest”, I do not accept that the wife has, by simply now denying same, in any way inferred that she has received advice as to whether that proposition is accurate or inaccurate.
I am conscious of the High Court’s decision in Mann & Carnell as quoted by the majority in Osland & Secretary to the Department of Justice at paragraph 32:
Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects [an implied or imputed] waiver of the privilege.
I am not satisfied the wife’s actions, either in the evidence that she has given but which I am satisfied, as above, is not properly before the Court, responding as it does to evidence which cannot be adduced, is inconsistent with her maintenance of confidentiality and legal professional privilege. The wife has not sought to canvass or discuss the advice she has received. She has not sought to suggest that she has relied or failed to rely upon it. She has not suggested that advice has been given and that she has rejected it.
What she has indicated in the disputed paragraph is simply that her lawyers acted without authority, acted contrary to her instructions or acted without her instructions. That does not in any way refer to, let alone disclose, expressly or impliedly, legal advice that she has sought or received. Thus, Mann & Carnell and Osland & Secretary to the Department of Justice do not persuade me that there has been a waiver.
In Bennett & Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101, the Full Court of the Federal Court discussed in some detail the law relating to implied waiver of legal professional privilege.
Their Honours in Osland & Secretary to the Department of Justice canvassed the individual decisions of the various members constituting the Full Bench of the Federal Court in some detail. I do note, however, that the decisions of their Honours, particularly those specifically relied upon and referred to by the High Court, Tamberlin and Gyles JJ, each placed particular reliance upon the High Court’s earlier decisions, particularly the dicta of Kirby J, in Ampolex Limited & Perpetual Trustee Company (Canberra) Limited & Ors also referred to in a number of the other authorities above, wherein Kirby J stated at paragraph 34:
I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents.....at least in respect of the substance of the legal advice supporting Ampolex’s assertion about the correct ratio, which is in contest here, it is strongly arguable that the public reference to the supporting legal advice waived the privilege as to the precise content of the legal advice on that point.
Again, what is distinguishable between the facts of this case and that before Kirby J is that there has been no reference whatsoever by the wife to her legal advice, what advice was sought, what advice was given or what reliance or rejection followed. All she has asserted in paragraph 9 of her Affidavit is that the assertion made by her firm of attorneys was without her authority and/or inconsistent with or absent her instruction.
As regards all of the above matters, I have particular assistance from the High Court’s decision in Expense Reduction Analysts Group Proprietary Limited & Armstrong Strategic Managing and Marketing (2013) 303 ALR 199.
Whilst that is a case dealing with disclosure and discovery rather than inspection of material produced on subpoena, it has some particular guidance for me. That case dealt with documents which had been inadvertently produced for discovery by a firm of lawyers. Indeed, to paraphrase the factual matrix of that matter:
a)Documents were produced;
b)Upon production, it was realised by those inspecting the material, that documents which could properly be arguable to be protected by legal professional privilege had been produced;
c)That advice was relayed to the producing lawyers;
d)The producing lawyers sought the return of the documents;
e)The inspector refused to return them.
Thus followed a banquet of litigation at first instance, on appeal and subsequently before the High Court. What was made clear in that regard, and dealing again with the issue of inconsistency, was stated at paragraphs 15 and 16:
These beliefs – [the forming of a belief the material was covered by privilege] –are inconsistent with the reviewers having formed an intention not to claim privilege. Further, to form such an intention would have been contrary to their clients’ instructions ... [I]f the documents had been disclosed inadvertently, privilege would not have been waived. Conversely, her Honour’s view was that, absent a finding of mistake, disclosure would amount to a waiver of the privilege not to produce them.
Their Honours constituting the High Court expressly found that the inadvertent disclosure did not waive privilege. Importantly, the role of mistake in their Honour’s deliberations is significant.
In this case, that is the very issue at the heart of the wife’s position. She asserts that a mistake of fact occurred through the absence of instruction or misunderstanding of her instruction to her then attorneys, who wrote without or contrary to her instruction, to make what appears and is asserted in the husband’s submissions to be an admission. I do not accept that this is so. The error of fact asserted by the wife, I am satisfied, does not amount to or constitute an express or implied waiver of her right to legal professional privilege.
The High Court in the above decision referred extensively to Guinness Peat Properties Limited & Fitzroy Robinson Partnership (a firm) [1987] 1 WLR 1027, wherein Campbell JA noted three principles that might be applied where a privileged document is mistakenly included. I hasten to add that, in this case, a privileged document has not been disclosed but what would otherwise potentially be ‘privileged information’ has been. Disclosure in the terms of annexure B, the correspondence from the former attorneys suggested to have been sent without or in mistake of instruction, thus would constitute something analogous thereto.
Campbell JA continued that, where a privileged document is mistakenly included, principles could be summarised as follows:
(1)where a document is mistakenly included by a party, the court will ordinarily permit that party to amend its List of Documents, under the rules of court, at any time prior to inspection;
(2)generally it is too late to correct the mistake by injunctive relief once another party has inspected the documents;
(3)injunctive relief may otherwise issue:
(a)where inspection has been procured by fraud or
(b)where, on inspection, the other party or that party’s solicitor realised that the document was made available for inspection as a result of an obvious mistake.
I do not suggest that the husband or his attorneys could have possibly formed a reasonable apprehension that a mistake had been made by the wife’s former attorneys. However, those principles all speak to a pragmatic and common sense approach being adopted towards the issue.
Their Honours noted at paragraph 30:
According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied.
Their Honours then referred to Craine & Colonial Mutual Fire Insurance Company Limited (1920) 28 CLR 305 and indicated that, therein:
...it was explained that “‘[w]aiver’ is ‘a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions ... It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has ‘approbated’ so as to prevent him from ‘reprobating’.”
Their Honours then referred to and reaffirmed Mann & Carnell and the consideration of fairness in informing the Court’s views of inconsistency.
All of that leads, in my mind, to the inescapable conclusion that:
a)It would be entirely unjust and unfair to infer a waiver of the wife’s legal professional privilege when she has made no reference whatsoever to advice but simply indicated that her former solicitors made a mistake;
b)The wife’s behaviour in thus asserting that mistake or error of fact is not inconsistent with her assertion of legal professional privilege.
A significant discussion occurred in their Honour’s deliberations in Expense Reduction Analysts Group Proprietary Limited & Armstrong Strategic Managing and Marketing of English decisions, commencing at paragraph 36. What distinguishes the positions advanced in the various authorities discussed therein from the present case is the wife’s assertion of nothing more than an error of fact.
At paragraph 44 their Honours quoted Lord Diplock’s observations in Harman & Secretary of State for the Home Department [1983] 1 AC 280, wherein:
...discovery is a practice peculiar to common law systems, whereby parties to litigation can be compelled to produce to one another, for inspection and copying, all the documents in their possession or control which contain information that may assist another party to advance its own case or to damage the case of the disclosing party. As his Lordship also observed, “[t]he use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself”.
Again, it is to be noted that one is not discussing documents and their disclosure here. What is sought to be eroded is the wife’s right to privilege of communication between herself and her attorneys, in this case, by reference thereto.
I am satisfied that the wife has not, and could not be asserted to have, acted inconsistently as regards a disclosure of communication between herself and her attorneys, as she denies the communication occurred. It may be suggested that, having put in issue whether a communication occurred, is of itself a waiver of privilege associated with the retainer between her attorneys and herself and thus opening the door to an examination of whether the wife did or did not in fact give that instruction. I am not satisfied that any of the authorities referred to would go so far as to support that contention.
In light of the all of the above matters, I am satisfied and find:
a)The correspondence, annexure B, would not be evidence which could be adduced in these proceedings by reference to section 131 of the Evidence Act.
b)Lest I am wrong with respect to the above, I note that reliance upon that correspondence, in light of the wife’s assertion as to mistake of fact would potentially be prejudicial and extremely prejudicial to her interests and thus its exclusion or limitation by reference to sections 135 and 136 of the Evidence Act would be appropriate.
c)Whether evidence of that nature is before the Court or not, neither assists nor prejudices the husband. The husband seeks to inspect material that will relate to a representation or instruction provided or not provided by the wife to her attorneys. It will not go to the substantive issue that the Court must determine as to whether the wife has an equitable interest. To that extent, reliance upon material or its inspection would not serve any forensic or probative purpose. There is better and more direct evidence available.
d)The wife has not made any reference to advice that she has sought, received, relied upon or rejected in any of the evidence before the Court. She has given evidence of one issue only as regards this determination, that being her assertion that her attorneys acted without her authority, and either contrary to or absent her instruction. The wife has done nothing more than assert that fact.
e)The wife has taken prompt action in seeking to address what she asserts as an error of fact through termination of the retainer of her former attorneys. The evidence that she has given in these proceedings is in response to material that the husband could not properly adduce by reference to section 131 of the Evidence Act and thus which can properly be disregarded.
f)However, lest I am wrong with respect to the above, I am satisfied that the wife’s evidence does not constitute an express or implied waiver of privilege as it does not relate to or refer to legal advice in any fashion but purely the accuracy or inaccuracy of an assertion made by a third party in a document which is not the wife’s and suggested to have been made absent or contrary to her instruction.
g)The wife’s evidence in these proceedings is entirely consistent with her assertion of legal professional privilege.
h)The wife’s evidence in response is improperly adduced by her, being in response to material that is improperly before the Court.
i)The most that I can infer from the letter annexure B with the assertion “We accept an equitable interest” is that a statement has been made by attorneys, a statement which is suggested by the wife to be contrary to, or absent, her instruction. I do not accept that the statement in correspondence necessarily or expressly implies that advice has been given, received or accepted and thus that any reference by the wife to that correspondence necessarily implies or discloses advice she has sought or received or is any way inconsistent with her assertion of privilege.
j)The evidence that would be produced through inspection of the material sought is of so little probative value as to obviate against its inspection, particularly in light of the serious public policy issue that arises and was discussed in the above authorities underlying and at the basis of legal professional privilege.
k)There is no prejudice to the husband if he is not permitted to inspect the material. The husband can lead, as he has, all relevant evidence that he seeks to assert. The evidence that could arise – and I am clear in noting that the husband does not seek to adduce the material but simply to inspect it, but ultimately its inspection must be for a forensic purpose, i.e., ultimately to seek to rely upon it in obtaining his own advice or to adduce it to the Court – is not evidence that is probative. At best, even if one were to dismiss the wife’s assertion that it is made in error by her former, now discharged, attorneys, the application of legal principle and any determination that is made is ultimately, and absent concession, a matter for the Court to determine. Clearly, no concession is available. Thus, the parties will need to adduce evidence that would support, through application of law an equitable principle, a finding that an equitable interest exists. I note that both parties will need, and will be in a position, to produce such evidence as regards the equitable interest they each assert the other has in property.
For those reasons I am not satisfied inspection could occur and thus the subpoena should be set aside.
The subpoena itself and the documents produced
It is to be noted that documents have been produced in response to the subpoena and have been inspected in dealing with this issue. The inspection has occurred by the Court to determine the relevance and veracity of the material and to speak to the objections that are raised and the press for leave made by the husband. What is clear from an inspection of that material is twofold.
Firstly, the original file is no longer held by those attorneys but by the wife’s present attorneys.
Secondly, that which is produced in response to the subpoena, copies of that which had been held on the file, whether the complete file or otherwise, do not speak to the issue involved. The only document remotely relevant to the issue that is raised is the production of a copy of the entire letter, part of which forms annexure B to the husband’s Affidavit. Accordingly, irrespective of the time and effort devoted to the above, there is simply nothing that would be of any use, even if leave were granted.
Further, I am satisfied, including by reference to the authorities discussed above and particularly Mark & Messina, that if inspection were to be granted to any portion of the file, that the right to inspect would be limited to that which addressed the wife’s instruction and advice provided in response thereto as regards the property the subject of the suggested equitable interest. In that regard, the subpoena in itself, seeking as it does the production of the entire file and each and every document that would have ever been brought into existence in the course of retainer, is too wide and would on that basis be read down or struck out.
Ultimately, I am satisfied that the prejudice to the wife, if documents were produced and a right to inspect granted as sought, to the totality of the file, would be so prejudicial to the wife that it should not occur. That would not obviate against a limited inspection arising. However, I am not satisfied any inspection should occur.
Thus, and in those circumstances, I make the following Orders.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 6 June 2014
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