Keach and Keach and Anor (No 5)
[2009] FamCA 1377
•7 October 2009
FAMILY COURT OF AUSTRALIA
| KEACH & KEACH AND ANOR (NO. 5) | [2009] FamCA 1377 |
| FAMILY LAW – TRIAL – Application of wife to tender document in possession of second respondent put to applicant in cross examination – second respondent objected on grounds of relevance and legal professional privilege – legal professional privilege not substantiated – held that document relevant but question of weight – leave to wife to tender document |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Keach |
| FIRST RESPONDENT: | Ms Keach |
| SECOND RESPONDENT: | J Pty Ltd |
| FILE NUMBER: | SYF | 2181 | of | 2006 |
| DATE DELIVERED: | 7 October 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 September 2009 7 October 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr North SC with Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
| COUNSEL FOR THE SECOND RESONDENT | Mr Esplin |
| SOLICITOR FOR THE SECOND RESPONDENT | Esplins Solicitors |
Orders
That the wife be permitted to tender the document marked MFI1 as an exhibit, and it be marked as Exhibit W31.
That the wife file and serve a written outline of her final submissions by 4:00pm on 2 November 2009.
That the husband and the second respondent each file and serve written outlines of their final submissions by 4:00pm on 23 November 2009.
That further consideration of this matter be adjourned to 9:00am (ACDT) on 24 November 2009.
IT IS NOTED that publication of this judgment under the pseudonym Keach & Keach and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: SYF 2181 of 2006
| MR KEACH |
Applicant
And
| MS KEACH |
1st Respondent
and
| J PTY LTD |
2nd Respondent
EX TEMPORE REASONS
When this matter was last before me, namely 25 September 2009, at the very end of that day Mr North SC, for the wife, sought to tender a document extracted from certain subpoenaed documents produced by the solicitors for Mr Keach Senior. The document was put to Mr Keach Senior during cross-examination and questions were asked in relation to it. The document was sought to be tendered. At that point Mr Maiden SC, for the second respondent, objected to the tender on two grounds, one of relevance, and one that the document was subject to legal professional privilege.
I heard submissions at that time in relation to the issue of legal professional privilege, but I was not able to hear all the submissions in relation to relevance. Unfortunately, I had to rise and there was no time left to complete this issue. Thus this issue, along with other issues that were outstanding at the end of that day, was adjourned to today for further consideration. And today I have heard further submissions from counsel in relation to this topic.
There are two bases of objection to the tender: the first is legal professional privilege and the circumstances of that are that this document comes from the file, or files, maintained by the solicitors for the second respondent, and those files were produced pursuant to a subpoena which was issued on Monday 21 September 2009, namely the first day of the trial. It was returnable for the next day in anticipation of the documents being received overnight. Without going into the detail of it, that did not happen and the return was put off until later in the week. Ultimately the documents arrived, and on Thursday I gave leave to inspect them.
Now, it is conceded by counsel for the wife that the document sought to be tendered, when it was created, was subject to legal professional privilege. It is a document which it is common ground contains instructions from Mr Keach Senior to his solicitor in relation to changes to be made to various of the entities under his control. However, the submission of the senior counsel for the wife is that that privilege has been waived in the circumstances where the documents have been produced pursuant to a subpoena. They have been produced by a firm of solicitors and inspected, and no objection was taken at any stage of that process to inspection of the documents, including this one under discussion. No claim for legal professional privilege was made at any stage prior to the document actually being sought to be tendered.
In response to that submission Mr Maiden SC on 25 September 2009 made very brief submissions on behalf of the second respondent, simply indicating that his client continued to claim legal professional privilege in relation to that document. Today, though, Mr Esplin, who appears for the second respondent, has made further submissions to the effect that there was not the opportunity to put forward a claim for legal professional privilege at the time, it all happened in a bit of a rush, and the solicitor concerned wasn’t able to be in court on the relevant day.
Now, I may be reading too much into it, but I raised on the last occasion that there is authority that where there are for example, documents produced pursuant to a subpoena which might have privilege attaching to them, but they are inspected, and that has happened by way of inadvertence or oversight on behalf of either the person producing the documents or the party, or the relevant parties in relation to the documents, then if it can be established that the party inspecting the documents would have had a reasonable apprehension that no claim for privilege had been made because of an oversight or inadvertence, then the privilege is maintained.
In my view though, in this case there has been a clear waiver of the privilege. The documents have been produced by a firm of solicitors. They would have well known what the consequences of producing the documents would be, and the need for any claim to be made for legal professional privilege. There are various stages at which that claim could have been made, and albeit the timeframe was truncated, I do not consider that to be an explanation or a basis for suggesting that there has been some oversight or some inadvertence in not claiming privilege. And more importantly, it is not apparent that there could be a reasonable apprehension on the part of the wife in this case and her advisers that there had been that oversight.
To repeat, the documents were produced by a firm of solicitors, no claim for privilege was raised at that stage, leave to inspect was given, no claim for privilege was raised at that stage, and it is only when a document from that bundle of documents is sought to be tendered that this claim is raised for the very first time. I do not consider the fact that the solicitor concerned was not available on the day of inspection ameliorates or changes that position. As I say, right from the moment of the subpoena being issued and the collation of the documents for production, there could have been a claim for privilege by the solicitor, or firm of solicitors concerned, but there was not.
Thus in my view, the privilege which it was conceded attached to this document when it was created has been waived, and that cannot be a ground for not receiving this document into evidence.
Turning then to the issue of relevance, which is the other basis of the objection, Mr Maiden SC did provide me with more fulsome submissions on this topic than he did on the previous topic, but that is not in any sense a criticism. In a nutshell, the objection is that this document was created in November 2006, which is some time after the separation of the husband and the wife in this case, namely in December 2005, and after the proceedings had been commenced in February 2006.
And the point of that, is that given the bases identified for the orders sought by the wife in relation to the second respondent, namely that the trust is a sham, or that the parties have an equitable interest in a property at M, or that s 85A of the Family Law Act applies to the trust and/or the contributions of the parties, the fact that this document was created well after separation of the parties and well after the proceedings commenced, renders it irrelevant to the issues the subject of this dispute.
Mr Kearney, in his submissions today on behalf of the wife, has referred me to the questions put to the witness and the answers provided by the witness in relation to this document, and says that that indicates the relevance of the document itself.
Now, in my view, the document is relevant in that it does relate, although I must say tenuously, to the bases or at least to one of the bases of the claim made by the wife. And what I am referring to in that context is the outline of the case of the wife, and in particular where these bases are referred to commencing on page 70. One of the contentions of the wife in paragraph 5 of that part of the outline of the argument under the heading Asset Pool, is that until 19 December 2006 and I am reading directly from it (Paragraph 5.4):
“the husband was a director and shareholder of the trustee of the trust and exercised effective control of the trust from which he solely derived benefit at all material times.”
And further in paragraph 5.5:
“The financial affairs of the husband prior to the marriage and of the parties jointly during and following the marriage are and have been inextricably intertwined with and are indistinguishable from the affairs of the trust.”
Thus, I consider it relevant at least in relation to the history of the trust and the changes that have been made to the trust, given that the instructions which are contained in this document led to alterations to the trust, namely there was a change of trustee to a company by the name of J Pty Ltd whereas previously, the trustee had been Keach Nominees Pty Ltd.
Now, although I consider the document to be relevant, the question of its weight is entirely another question, and one which I do not need to address at this point for the purposes of admitting or not admitting this document into evidence.
However, can I say this. It was put to the witness that page 1 of this document indicated that no child of the witness is to be a Director of J Pty Ltd or O Pty Ltd, unless that child has first entered into a pre-nuptial agreement. Now, a plain reading of the document indicates that that is incorrect. There is no reference on page 1 to J Pty Ltd. The two companies mentioned are O Pty Ltd and Y Pty Ltd. There is also no reference to the children of the witness. And that, in my view, goes to the weight of this document.
I have also today addressed the issue of finalising the case by receiving written submissions, and I have also raised an issue in relation to paragraphs 10 and 11 of the orders sought by the wife, namely, the need to hear from Karras and Partners in relation to those orders, given that, as Mr North has explained today, the proposal is to in effect adjourn those orders sought to after the conclusion of this case. I will not repeat the reasons for that. They are on the transcript.
I certify that the preceding 16 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland on 7 October 2009.
Associate
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