McGlennan and Don
[2009] FamCA 995
•29 SEPTEMBER 2009
FAMILY COURT OF AUSTRALIA
| MCGLENNAN & DON | [2009] FamCA 995 |
| FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – where a claim of legal professional privilege is made with respect to some documents produced pursuant to a subpoena – where legal professional privilege attaches to those documents – documents to which privilege applies to remain in a sealed envelope in the custody of the Court and not to be subject to inspection and copying by the parties – leave otherwise granted to the parties to inspect and copy documents produced | |
| Family Law Rules 2004 (Cth) rr 15.26, 15.27 & 15.33 | |
| Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Mann and Carnell (1999) 201 CLR 1 Stamp and Stamp (2007) FLC 93-314 Macquarie Bank Pty Ltd & B & Anor (2006) FLC 93-290 Apache Northwest Pty Ltd and Others v Western Power Corporation (1998) 19 WAR 350 |
| APPLICANT: | Mr McGlennan |
| RESPONDENT: | Ms Don |
| INDEPENDENT CHILDREN’S LAWYER: | Northern Territory Legal Aid Commission |
| FILE NUMBER: | DNC | 148 | of | 2009 |
| DATE DELIVERED: | 29 SEPTEMBER 2009 |
| PLACE DELIVERED: | Darwin |
| PLACE HEARD: | Darwin |
| EX TEMPORE REASONS OF: | BURR J |
| HEARING DATE: | 29 SEPTEMBER 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS MUDIE |
SOLICITOR FOR THE APPLICANT: | WITHNALLS |
| COUNSEL FOR THE RESPONDENT: | MS McLAREN |
SOLICITOR FOR THE RESPONDENT: | ASHA McLAREN |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MS ELLIOTT |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | NT LEGAL AID COMMISSION |
Orders
Leave is granted to the parties and the Independent Children’s Lawyer to inspect and copy the documents produced pursuant to subpoena directed to the Department of Education SAVE AND EXCEPT for those documents the Court considers attract legal professional privilege which documents have been separated and remain in the sealed envelope in the custody of the Court.
IT IS NOTED that publication of this judgment under the pseudonym McGlennan & Don is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT DARWIN |
FILE NUMBER: DNC 148 of 2009
| MR MCGLENNAN |
Applicant
And
| MS DON |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
EX TEMPORE REASONS FOR JUDGMENT
In these proceedings a subpoena was issued by the Independent Children’s Lawyer directed to the Department of Education on 2 September 2009 (document 27 on the Court file). The Department of Justice responded to that subpoena on behalf of the Department of Education and by letter dated 15 September 2009 indicated:-
“You will note that some documents have been separated and placed into a separate A4 envelope. These documents are separated on the basis of a claim for legal professional privilege. The documents have been identified according to the folio details inside the Student Record Folder. As the documents provided include the original SRF, please ensure that the documents are returned to me at the above address on finalisation of the proceedings.”
Under the Family Law Rules 2004, part 15.3 addresses the issuing of subpoenas and the following rules in particular are relevant:
Rule 15.26
Objection to subpoena
If a named person or a person having sufficient interest in a subpoena:-
(a)seeks an order that the subpoena be set aside in whole or in part;
(b)objects to the production of a document required by the subpoena;
(c)seeks to be paid for any loss or expense relating to the person’s attendance, or the production of a document, in compliance with the subpoena; or
(d)seeks any other relief in relation to the subpoena;
the person must attend court on the court date to apply for the order.
….
I have been informed by Ms Elliott for the Independent Children’s Lawyer that it is not the intention of the Department to be here today to argue the question of the privilege they have claimed and indeed it is noted that there is no attendance today by the Department.
Rule 15.33
Claim for privilege
The court may compel a person to produce a document to the court for the purpose of ruling on an objection to the production of the document under a subpoena for production.
In this matter this is not an issue as the Department has provided the documents that were subpoenaed.
Claim for legal professional privilege
Legal professional privilege applies to protect confidential communications (whether oral or written) between a client and their legal adviser where the dominant purpose was the giving or receiving of legal advice or for use in existing or anticipated proceedings. (See Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49).
Legal professional privilege can be waived expressly, or impliedly where the conduct is inconsistent with the maintenance of the privilege. (See Mann and Carnell (1999) 201 CLR 1 at [28] – [29] , Stamp and Stamp (2007) FLC 93-314 and Macquarie Bank Pty Ltd & B & Anor (2006) FLC 93-290).
The issues for determination here with respect to the claim of legal professional privilege are therefore whether privilege applies to the documents sought to be produced pursuant to the subpoena, and if it does, whether privilege has been waived.
I do consider, having read the materials, that professional privilege attaches to some of the information sought pursuant to the subpoena. Privilege attaches to documents which disclose or record communications or advice between the Department of Justice and the Department of Education and members of school staff but particularly the Principal of M’s school.
Confidentiality
Whilst it was not raised by the Department of Justice, objection can also be raised on the ground that the documents are confidential. Although confidentiality of documents is not generally a ground for setting aside a subpoena to produce documents, a claim of confidentiality is usually dealt with by the Court restricting access to, and the use of, documents produced pursuant to subpoena.
In the decision of the Supreme Court of Western Australia, Apache Northwest Pty Ltd and Others v Western Power Corporation (1998) 19 WAR 350, the Court approved (at 380) the approach taken by the trial judge where her Honour accepted that, although confidentiality is not a ground on its own for setting aside a subpoena, it is a factor to be taken into account.
I do not consider that confidentiality of the documents is a sufficient ground upon which to set aside the subpoena, which is not sought in any event by the Department, but Rule 15.27 makes it clear that documents produced under subpoena are only to be used for the purposes of the case and are not to be disclosed.
In my view some documents produced attract legal professional privilege and ought to be excluded from the right of the parties to inspect and copy. I have separated those documents, which are few in number in any event, and they remain in the sealed envelope which the Court will retain in its own custody. In relation to the balance of the documents, I give leave to the parties to inspect and copy those documents produced.
I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr.
Associate:
Date: 29 September 2009
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