Higginson-Swann and Higginson-Swann

In the Family Court of Australia at Sydney, Justice Le Poer Trench considered an application by the wife for inspection of legal files held by the husband. The wife had issued subpoenas to the husband and his solicitors seeking documents relating to five specific pieces of litigation. The husband claimed legal professional privilege over these documents, which had been collected by him after his solicitors indicated they no longer held them. The wife contended that the husband had waived this privilege.

The central legal issue before the Court was whether the husband had waived his legal professional privilege over the documents sought by the wife. This question arose in the context of the wife's assertion that the husband had wasted significant marital funds on the litigation, and her need to inspect the files to satisfy herself that the litigation had been conducted prudently and appropriately. The wife relied on specific paragraphs from the husband's affidavit, which disclosed details of his communications with his solicitors regarding the litigation, as evidence of waiver.

Justice Le Poer Trench reasoned that the husband's disclosure of certain communications with his lawyers in his affidavit created an inconsistency if he were to maintain privilege over other communications relating to the same litigation. Applying the principle from *Macquarie Bank and B & B*, the Court found that it would be unfair to the wife to allow this inconsistency to stand, thus constituting a waiver of privilege. Furthermore, the Court held that the husband's general duty of disclosure under Rule 13.01, requiring disclosure of all information relevant to the case, extended to making available all documents associated with the five pieces of litigation. This was particularly so given that substantial marital funds had been released to the husband for the purpose of this litigation, and the wife alleged waste of these funds.

The Court ordered that all documents produced to the Court by the husband in response to the subpoenas be released for inspection by the wife and her legal representatives.