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 | of | 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…
Keep reading for free
Create a free CaseChat account to read Malloy and Stopford Malloy (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2020] FamCA 773
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.