Legal Services Commissioner v Toomey

[2015] QCAT 268

CITATION: Legal Services Commissioner v Toomey [2015] QCAT 268

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
Leisa Ann Toomey (Respondent)

APPLICATION NUMBER: OCR010-14

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 7 July 2015

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The parties are granted access to the documents filed by Sparke Helmore Lawyers pursuant to the order of 14 April 2014.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – QUEENSLAND – PROCEEDINGS IN TRIBUNALS – where order made pursuant to s 63 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) for a third party to produce documents to the Tribunal – where parties ordered not to access documents until further order in the expectation that a claim for legal professional privilege would be made – where legal professional privilege claim not pursued – where, in the alternative, legal professional privilege has been waived – whether parties should be granted access to the documents

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 63

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

Background

1. In this matter, an order was made on 14 April 2014 pursuant to s 63 of the QCAT Act that Sparke Helmore Lawyers produce to the Tribunal documents relevant to the proceedings before the Tribunal. The documents were identified with reference to the judgment of Watts J, of the Family Court of Australia, on 6 May 2010 in Lambert v Jackson.[1]

   [1][2010] Fam CA 357.

2. It was ordered that the parties are not to have access to the documents until further order.

3. It was contemplated that claims for privilege might be made with respect to the documents.

4. At the time of the delivery of the documents to the Tribunal Registry, Sparke Helmore indicated that a party to the Family Court proceeding (who I will refer to as ‘the client’), for whom Sparke Helmore did not act, wished to claim privilege.

5. Ultimately, the current lawyers for the client, SJP Law, indicated that their client:

   a)does not intend to make any submissions to support the claim for privilege from disclosure, and

   b)does not intend to appear in any proceedings involving the actions by the Legal Services Commissioner.

6. The Legal Services Commissioner now seeks access to the documents which have been produced.

Discussion

1. The Legal Services Commissioner has filed very helpful submissions in relation to this matter. 

2. The Legal Services Commissioner asserts that:

   a)In view of the most recent communication from the client, any claim for privilege has been abandoned and not pressed with the result that it is doubtful that there is presently a claim of privilege to be dealt with. This should be conclusive and lead to access to the documents being granted.

   b)No claim for privilege arises in these proceedings as the client (the potential owner of the privilege) is not at any risk of any adverse outcome in the current proceedings, as the proceedings are against Ms Toomey in the context of her conduct. Moreover, the client is de‑identified in accordance with Family Court practice.  Therefore, the occasion for legal professional privilege does not arise.

Waiver

1. The Legal Services Commissioner submits that, if it is found that a claim for privilege has not been abandoned and if it is found that there is an entitlement to claim privilege, there has been a waiver of privilege.

2. During the Family Court hearing, the Sparke Helmore file was subpoenaed and it was tendered without objection. The client was a party who had the opportunity to object but did not.

3. Moreover, in the latter stages of the litigation, Ms Toomey was added as a party in respect of arguments concerning costs and the client filed an affidavit raising issues as to his instructions to Ms Toomey, her advice and her actions. It is argued this amounts to a waiver by the client as his actions (in referring to the instructions, advice and Ms Toomey’s actions) were acts which were inconsistent with the maintenance of the confidentiality of the communication, and so inconsistent with the maintenance of any privilege claim.

4. In the circumstances, I am persuaded by the arguments advanced by the Legal Services Commissioner.

5. From the communication from SJP Law, it is clear that the claim for privilege is not pressed.

6. In any event, it is equally clear that privilege was waived, certainly at the time the client filed the affidavit raising issues concerning the instructions to Ms Toomey, her advice and her actions. These are actions which are inconsistent with the maintenance of confidentiality of the communication and so inconsistent with the maintenance of any claim for privilege.

7. In the circumstances, it is ordered that the parties have access to the documents which have been filed at the Tribunal by Sparke Helmore.