Malloy and Stopford Malloy (No 2) - [2020] FamCA 773

FAMILY COURT OF AUSTRALIA

MALLOY & STOPFORD MALLOY (NO. 2)

[2020] FamCA 773

FAMILY LAW – PRACTICE AND PROCEDURE – application for disclosure – where parties agreed in late 2016 for exchange of redacted copies of retainer agreements – where privilege claimed by wife over parts of retainer agreements – where claim for privilege undisputed – where wife provided redacted copies of retainer agreements – where wife’s lawyers disclosed agreement for legal fees to be paid on a “no win, no fee” basis – where husband alleges undisclosed funding arrangement – no evidence of undisclosed funding arrangement – no basis to disturb claim for privilege – application dismissed – costs ordered against the husband.

Family Law Act 1975 (Cth) ss 117
Family Law Rules 2004 (Cth) rr 13.04, 13.13, 16.10, 19.04

Commissioner of Australian Federal Police v Propend Financial Pty Ltd (1997) 188 CLR 501
CSR Limited v Eddy (2008) 70 NSWLR 725
El Rashidy & El Rashidy and Anor [2020] FamCAFC 40
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 191 FLR 294
Kirby v Centro Properties Ltd (No 2) (2012) 87 ACSR 229
Malloy & Stopford Malloy [2019] FamCA 986
Prantage & Prantage (Costs) [2014] FamCA 850
Stoian & Fiening (Costs) [2014] FamCA 944

APPLICANT:

Mr Malloy

RESPONDENT:

Ms Stopford Malloy

FILE NUMBER:

ADC

2595

2015

DATE DELIVERED:

18 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

In Chambers by way of written submissions

REPRESENTATION

THE APPLICANT:

Mr Malloy

COUNSEL FOR THE RESPONDENT:

Mr Wells QC

Mr McGinn

SOLICITOR FOR THE RESPONDENT:

Piper Alderman

Orders

The Application in a Case filed by the husband on 7 February 2020, seeking un-redacted copies of the wife’s Retainer Agreements with her legal counsel and experts, be dismissed.
The husband pay the wife’s of his application costs as agreed or as assessed on a solicitor client basis in accordance with scale.

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 Malloy & Stopford Malloy 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 SYDNEY

FILE NUMBER: ADC 2595 of 2015

Mr Malloy

Applicant

And

Ms Stopford Malloy

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting and property proceedings between Mr Malloy (“the husband”) and Ms Stopford Malloy (“the wife”).
This judgment, one of at least nineteen other judgments already delivered in these long running proceedings, relates to a discrete issue arising from the Application in a Case filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FamCA 773
Decision Date: 18 September 2020

CaseChat Overview and Summary

In the matter of *Malloy and Stopford Malloy (No 2)*, Harper J of the Federal Circuit and Family Court of Australia considered an application by the husband seeking un-redacted copies of the wife’s retainer agreements with her legal counsel and experts. The dispute arose within ongoing family law proceedings.

The central legal issue before the court was whether the husband was entitled to access these un-redacted retainer agreements. This required the court to consider the principles of privilege, particularly legal professional privilege, and the extent to which such documents, if otherwise privileged, could be disclosed in family law proceedings. The court also had to determine if the husband had demonstrated a sufficient need or justification to overcome any privilege that might attach to the documents.

Harper J dismissed the husband’s application, finding that the retainer agreements were protected by legal professional privilege. The court reasoned that the agreements themselves, containing as they did communications between the wife and her legal representatives, were inherently privileged. The husband had not established any basis for overriding this privilege, nor had he demonstrated that the information sought was essential for the proper conduct of the proceedings or that there was no other way to obtain the necessary information. Consequently, the husband was ordered to pay the wife’s costs of the application on a solicitor-client basis.

Orders

Orders of the court

The Application in a Case filed by the husband on 7 February 2020, seeking un-redacted copies of the wife’s Retainer Agreements with her legal counsel and experts, be dismissed.

The husband pay the wife’s of his application costs as agreed or as assessed on a solicitor client basis in accordance with scale.

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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