Marello and Marello

[2011] FamCA 691

FAMILY COURT OF AUSTRALIA

MARELLO & MARELLO [2011] FamCA 691

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Legal professional privilege – Where the wife seeks to inspect a subpoena directed toward the husband’s solicitors – Waiver of privilege – section 122 of the Evidence Act 1995 (Cth) – Husband’s deposition did not waive privilege – Wife’s application dismissed.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Adelaide Steamship Co Limited & Spalvins (1998) 81 FCR 360
Ampolex Limited & Perpetual Trustee Co (Canberra) Limited (1996) 40 NSWLR 12
Mann & Carnell (1999) CLR 1

APPLICANT: Ms Marello

RESPONDENT: Mr Marello

FILE NUMBER: BRC 11438 of 2010

DATE DELIVERED: 8 August 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 8 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North of Senior Counsel appearing

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

COUNSEL FOR THE RESPONDENT: Ms Hogan of Counsel appearing

SOLICITOR FOR THE RESPONDENT: Hopgood Ganim Lawyers

SOLICITOR FOR THE OBJECTOR: Carne Reidy Herd Lawyers

Orders

IT IS ORDERED THAT:

1. The Wife’s Subpoena filed 29 July 2011 to Carne Reidy Herd Lawyers is dismissed and discharged.

IT IS NOTED that publication of this judgment under the pseudonym Marello & Marello is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11438 of 2010

Ms Marello

Applicant

And

Mr Marello

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. The application before me concerns the issue of a subpoena by the wife to former solicitors of the husband, relating to paragraph 5 of the husband’s affidavit filed on 4 July 2011, where the husband deposes to matters concerning an undertaking he gave to this court, filed in this court on 6 December 2010.  At paragraph 5 of his affidavit, the husband deposes:

   At the time the undertaking was signed by me, I had not investigated nor had there been any advice given to me by my then solicitor in relation to the following: 

   (a)my wife’s income and expenditure;

   (b)the reasonable needs of the children;

   (c)my income and expenditure; and

   (d)my capacity to comply with undertakings.

2. The subpoena seeks for the wife to have the opportunity to inspect the relevant file records between the period 15 September 2010 and 16 November 2010.  Mr North submits that, pursuant to the well-known authority in Mann & Carnell (1999) CLR 1, there is a clear case for disclosure of the material, because the deposition in paragraph 5, in essence, is inconsistent with the maintenance of legal professional privilege.

3. The husband’s counsel, Ms Hogan, submits that there is no waiver simply by the assertion of there being no advice without there being reference to the substance of any advice.  Moreover, she submits that in any event the entirety of the file would not be discloseable.  There would have to be a narrowing of the file made available for the purpose of meeting the subpoena.

4. Mr Waller, who appears for the limited purpose of answering this subpoena, confirms he hasn’t received any communication from the husband that he intends to waive the privilege.

5. In my view, this application and subpoena calls into question the operation of section 122 of the Evidence Act 1995 (Cth). I reach the view that the relevant deposition by the husband does not amount to a waiver of his legal professional privilege. In Mann & Carnell (supra), the Court referred to the features of disclosure of legal advice and recorded, at paragraph 34 of their judgment:

   Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect.  Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency.

6. In Adelaide Steamship Co Limited & Spalvins (1998) 81 FCR 360, the Federal Court observed:

   The test is a quantitative one, which asks whether there has been sufficient disclosure to warrant loss of the privilege.

7. It has been held that a mere reference to the existence of legal advice will not amount to disclosure, but that the words “the company maintains that the correct ratio is one to one, and has legal advice supporting this position” disclosed the substance of the legal advice, which was that the correct ratio was one to one: Ampolex Limited & Perpetual Trustee Co (Canberra) Limited (1996) 40 NSWLR 12.

8. In my view, the deposition at paragraph 5, expressed in the negative as it is, does not disclose the substance of any legal advice.  It would be different if the husband had positively deposed to, in any form, the substance of legal advice he had received, but in my view, in circumstances where the deposition is limited to an expression in the negative as to any advice being received on certain topics, it does not amount to a waiver of the privilege.

9. For those reasons, I dismiss the wife’s application, so far as the subpoena is concerned, and discharge the subpoena.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 August 2011.

Associate:

Date: 8 August 2011