Mark and Messina - [2009] FamCA 1021

FAMILY COURT OF AUSTRALIA

MARK & MESSINA

[2009] FamCA 1021

FAMILY LAW – EVIDENCE – Waiver of privilege – Common law provisions apply – Solicitor’s file produced pursuant to subpoena

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

Mann v Carnell [1999] HCA 66
Stamp and Stamp (2007) FLC 93-314

APPLICANT:

Mr Mark

RESPONDENT:

Ms Messina

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

11622

2007

DATE DELIVERED:

27 OCTOBER 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

27 OCTOBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ROBINSON

SOLICITOR FOR THE APPLICANT:

BARRY & NILSSON LAWYERS

COUNSEL FOR THE RESPONDENT:

MR BARTFELD QC

SOLICITOR FOR THE RESPONDENT:

NICHOLES FAMILY LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS FOSTER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

SCHETZER CONSTANTINOU

Orders

That Mr John Redman of Gibson and Gibson Lawyers of Perth make available for inspection and copying all memoranda, file notes and correspondence between Gibson and Gibson and the wife concerning the wife’s discussions with him (or the firm) about the approach to be taken by the wife in relation to the relationship between C and the father.
That any issue of costs arising out of these proceedings be a matter for written submissions to be provided and filed and served no later than 4.00pm on 13 November 2009.
That any reply thereto be filed no later than 4.00pm on 20 November 2009.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11622 of 2007

MR MARK

Applicant

And

MS MESSINA

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On the return of a subpoena directed to the mother’s former solicitors to produce the entirety of their file, objection to both compliance and release for inspection was raised by the mother. The mother claimed legal professional privilege. The father claimed that the mother had waived the privilege.
The argument of the mother also raised the issue of whether the subpoena was a “fishing” expedition for discovery purposes.
This parenting dispute is listed for final hearing in November 2009.
By way of background, the parties had a relationship between 2005 and 2007 in Perth from which C was born in January 2007. In May 2007, the parties separated.
The father’s substantive case is that he saw the child after separation with some difficulties. On the other hand, the mother complains about the father’s conduct.
In August 2007, the mother left Australia to live in Chile which triggered an application under the Hague Convention. That hearing determined in favour of the mother in the Chilean courts. An appeal against the Chilean court order was dismissed in December 2008.
The father’s case is that thereafter there was sporadic email communication between the parties but there was no meaningful relationship between the father and C.
The father’s case is that in July 2009, the mother returned to Australia without telling him. He said that he became aware of the fact that the mother was living in Perth in September 2009. The father now lives in Melbourne. A critical issue apparently in the trial is what happened during the months of July to September 2009 and from the father’s perspective, whether the mother had any intention of promoting the relationship between the father and C.
The sequence of events that gave rise to these proceedings were that upon the father becoming aware of the mother being in Australia, he issued proceedings and Senior Registrar FitzGibbon on an exparte basis made orders preventing the mother from leaving Australia again. Consequently, the mother went to a firm Gibson and Gibson Lawyers in Western Australia. The matter returned to court on 30 September 2009 when new orders were made which included some time between the father and C.
Significantly for the purposes of the application before me, Gibson and Gibson filed a Notice of Ceasing to Act on 15 October 2009 and at the same time, a Notice of Address for Service was filed on behalf of the mother by Barry & Nilsson Lawyers of Brisbane.
It would appear that the connection between Perth and Brisbane is that the mother has family in Perth whilst she works predominantly in Queensland. The child stays with her grandparents in Perth whilst the mother works. According to the submissions before me, all of this is very much part of the contentious parenting dispute.
On 19 October 2009, the mother filed an affidavit prepared by her Brisbane lawyers. The intense focus of the hearing before me was on two paragraphs that read as follows:
79.I was anxious about [C’s] relationship with her father and contacted my then solicitors, Gibson & Gibson Lawyers of Perth in relation to how best to approach the situation with [the father] prior to contacting [the father]. I was also anxious about [H’s] relationship with his father, [Mr M] and also contacted my solicitor in relation to [Mr M] and [H’s] relationship. The first appointment I was able to arrange with Gibson & Gibson Lawyers was on 17 August 2009.
80.I attended with Gibson & Gibson Lawyers on 17 August 2009. I cannot divulge the discussions that I had with my solicitors as I do not want to waive my solicitor/client privilege in relation to the advices provided to me by my solicitors, save and except to say that I was planning to forward a proposal and documents to [the father] and [Mr M] and I instructed Gibson & Gibson Lawyers to draw documents outlining my proposal
The father argued that the mother had put her state of mind in issue about whether (and if so what) the father should be told about her approach to the on-going and future relationship between the father and C. There is clearly a focus by the father also on the period between July and September 2009.
Mr Robinson of counsel for the mother said that when one looked at the history of the conduct of the mother, it was evident that an issue was going to be her attitude to the father having a role in the child’s life and as such, the Court could look at the background of her conduct in determining whether or not to exercise the discretion to release the file which is the subject of the dispute.
Mr Bartfeld QC on behalf of the mother argued that if the parties had not filed their trial affidavit material, it was premature to say what issues were going to be litigated. Thus, he said that the question should be left to the trial judge.
Mr Bartfeld also raised the question of the basis behind the father’s application. If he was seeking the inspection of a file for discovery purposes, not knowing what he would find, he was “fishing” and on the basis of the decisions relating to subpoenae, I ought to not exercise my discretion to release the files anyway.
Mr Bartfeld was also adamant that I ought not be swayed by the reference to past historical matters such as the hearing involving the use of the Hague Convention.
At first blush, paragraph 80 of the mother’s affidavit would appear to be an emphatic statement by her of the denial of the waiver of privilege. A statement to that effect does not necessarily protect the privilege for reasons set out below.
The approach to determine whether there has been a waiver of privilege depends on the stage and purpose of the application. Sections 118 and 122 of the Evidence Act 1995 (Cth) relate to the adducing of evidence. That is not the situation here. What is pursued by the father is the inspection of the material in the file of Gibson and Gibson. Thus, as it is not a situation in which the evidence is to be adduced, the common law provisions apply.
In Mann v Carnell [1999] HCA 66 the issue of waiver of privilege at common law gave rise to the following statement from Gleeson CJ, Gaudron, Gummow and Callinan JJ:
29.Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege…What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
The question to be asked is whether the mother’s actions as set out in paragraph 79 above are inconsistent with the maintenance of the confidentiality of the communication.
Much depends upon how one interprets the expression “puts in issue”. This Court is not a court of pleadings and as such, there is something to be said for the submission by Mr Bartfeld that no-one knows exactly how the mother is going to run her case. However some guidance can be obtained from the decision of the Full Court of this Court in Stamp and Stamp (2007) FLC 93-314. In that case, parties had consented to final financial orders in 2003. In 2004, the wife sought to set aside the orders under s 79A(1)(a) on the basis, amongst other things, of her mental state at the time that the orders were made. On the return of the proceedings at an interlocutory stage, an order was made that the wife provide particulars of her claim. In compliance with the order, a letter by the wife’s solicitors was written to the solicitors for the husband setting out the particulars said:
The status of her health at the time she entered into the consent orders as affecting her capacity to provide proper instructions in relation to the proposed terms.
On the basis of that statement, Stephenson J rejected an argument that there had been a waiver of privilege and refused to allow the husband to examine the wife’s former solicitor’s file. On appeal, Finn J said:
13.I agree with her Honour’s analysis that the only issue which the wife had placed in issue to that time, and then only by means of the letter from her solicitors dated 16 December 2004, was “the status of her health at the time she entered into the consent orders as affecting her capacity to provide proper instructions”.
…
17.It may very well be that once affidavits are filed (bearing in mind that there are no pleadings in this court), different issues may emerge which might justify a further application and indeed an order for inspection.
18.But in my view, the claim to inspect the solicitor’s file at the time it came before her Honour and on the basis of the material then filed was premature.
Finn J would have refused inspection of the file.
However, May and Boland JJ disagreed and forming the majority said:
57.It seems that the wife proposes that the head injury of 1996 produced a mental disability, which affected her capacity to provide proper instructions to her solicitors when she agreed to consent orders in December 2003. There is expected to be medical evidence about any disability. The workers compensation records may provide evidence about her injury.
58.If there was a disability, then there must be an issue about the extent to which it affected her capacity to give instructions to her solicitors and how it affected her proper settlement of the property dispute. That will inevitably draw attention to the role played by her solicitors, and any advice to and influence upon the wife. An obvious question is what was the extent and manner of her instructions to them?
…
60.The wife has raised the issue about her capacity to provide proper instructions. That issue is inconsistent with the maintenance of her usual right to procedural legal privilege. She must be taken to have waived her right to that privilege. Accordingly we are satisfied there was an error of principle and leave should be granted.
Two important considerations come from both the majority and dissenting judgment. The first is that it depends upon the way in which the privilege was waived. As the majority said, pursuant to an order of the Court, particulars were provided about the disputed issue inconsistent with the maintenance of the usual right of procedural legal privilege. Their Honours anticipated that the wife proposed to call that evidence. The wife had done no more than comply with the order of the court and set out what her claim was to be for the purposes of s 79A. If the wife put her state of mind in issue rather than the husband endeavouring to do so, it is clear that her state of mind was something to which a contribution was likely to have been made by the lawyers.
May and Boland JJ were not concerned about the state of the evidence that might be given at trial but rather in preparing for that trial, the issue had been flagged and clearly involved the explanation of and exposure of discussion with her lawyers. That gave rise to the inconsistency with the maintenance of the right of the privilege.
In my view, consistently with the approach taken in Stamp (supra) this is an implied waiver and the contents of paragraph 80 do little to assist the mother. She said in paragraph 79 of the affidavit that her state of mind was being formed by her discussions with her lawyers. That is inconsistent with the maintenance of the confidentiality of the communication between she and the lawyers.
I find therefore that the wife has waived the privilege.
The question of the extent of the waiver however was not argued. The subpoena pursued the complete file of the solicitors. It would be inappropriate to release the whole of the file. In Mann v Carnell (supra) the High Court said that the court was to be informed by considerations of fairness but it was not an overriding principle operating at large. To permit the whole file in circumstances where the waiver was strictly arising out of the inconsistency with the protection of the communication, it should only be the memoranda, file notes and correspondence relating to the advice given concerning the matters set out in paragraph 79 of the wife’s affidavit.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 27 October 2009