Mendicino and Mendicino and Ors (No 5)

[2015] FamCA 495

FAMILY COURT OF AUSTRALIA

MENDICINO & MENDICINO & ORS (NO 5) [2015] FamCA 495

FAMILY LAW – PRACTICE AND PROCEDURE – Interim Orders – Application of r 15.55 of the Family Law Rules 2004 (Cth) in maintaining legal professional privilege when providing instructions to an expert for production of a report – Where the husband contends that the wife’s disclosure of her legal advice to the expert doctor in providing instructions constitutes a waiver of legal professional privilege – Where the husband sought disclosure of all communication between the wife and her lawyers for the purpose of assisting the wife in engaging in discussions with the expert doctor – Where the wife’s reference to her legal advice when providing instructions to her doctor for the purpose of obtaining a report was not inconsistent with her maintaining the confidentiality of her legal advice – Application dismissed – Costs of the wife and husband of and incidental to the determination of this aspect of the application in a case reserved to the trial of the proceedings.

Family Law Rules 2004 (Cth)

Commissioner of Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

Interchase Corporation Ltd (In Liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) (1999) 1 Qd R 141
Mann v Carnell (1999) 201 CLR 1
Osland v Secretary to the Department of Justice (2008) 234 CLR 275

R v King [1983] 1 All ER 929
Ward (1981) 3 A Crim R 171

APPLICANT: Ms Mendicino

FIRST RESPONDENT: Mr Mendicino

SECOND RESPONDENT: Mr D Mendicino

THIRD RESPONDENT: Ms E Mendicino

FOURTH RESPONDENT: Mr F Mendicino

FIFTH RESPONDENT: G Pty Ltd

FILE NUMBER: BRC 875 of 2013

DATE DELIVERED: 26 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 19 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr SJ Williams

SOLICITOR FOR THE APPLICANT: Cooper Grace Ward Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE FIRST 

RESPONDENT:

HopgoodGanim Lawyers

COUNSEL FOR THE SECOND, THIRD AND FIFTH RESPONDENTS: Dr Brasch QC

SOLICITOR FOR THE SECOND, THIRD AND FIFTH RESPONDENTS: Phillips Family Law

COUNSEL FOR THE FOURTH RESPONDENT: Mr Kearney SC with Mr Alexander

SOLICITOR FOR THE FOURTH RESPONDENT: Emanate Legal

Orders

IT IS ORDERED THAT:

1. The application for an order in terms of paragraph 4(e) of the First Respondent Husband’s Application in a Case filed on 5 June 2015 is dismissed.

2. The costs of each of the Applicant Wife and the First Respondent Husband of and incidental to paragraph 4(e) of the First Respondent Husband’s Application in a Case filed on 5 June 2015 be reserved to the trial of these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mendicino & Mendicino & Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 875 of 2013

Ms Mendicino

Applicant

And

Mr Mendicino

First Respondent

And

Mr D Mendicino

Second Respondent

And

Ms E Mendicino

Third Respondent

And

Mr F Mendicino

Fourth Respondent

And

G Pty Ltd

Fifth Respondent

REASONS FOR JUDGMENT

1. Dr V, Clinical Psychologist, commenced treating the wife on 9 August 2013 and the wife continued therapy with Dr V thereafter.

2. An affidavit of Dr V annexing his report dated 13 February 2014 was filed on 11 August 2014.  That report details, inter alia, the nature and incidence of Dr V’s treatment of the wife on and from 9 August 2013.

3. Two draft reports of Dr V, both of which senior counsel for the husband contended pre-date the report annexed to Dr V’s affidavit (notwithstanding that one of them is dated 18 February 2014) have been disclosed by the wife to the husband in the course of disclosure in these proceedings.  Copies of these two draft reports were admitted and marked Exhibit 1 on this application. 

4. By paragraph 4 of his Application in a Case filed on 5 June 2015 the husband sought the production of documents referrable to Dr V categorised in the sub‑paragraphs of paragraph 4.  Only paragraph 4(e) is the subject of this determination and, read as referring to Dr V, it is in these terms:

   4.That within 7 days, the Wife or her lawyers produce to the lawyers for the First Respondent the following documents:

   …

   e.        If there were oral communications between any of the           wife’s lawyers and the wife for the purpose of assisting the      Wife in engaging in discussions with the doctor, a written           summary of those communications.

   …

5. In support of that order reliance was placed upon paragraph 30(a) of the husband’s affidavit filed on 5 June 2015 with respect to the contents of records produced by Dr V on subpoena.  The husband there deposes:

   30.Further, I am informed by my lawyers and verily believe that the records produced by [Dr V] make references to the following:

   (a)A discussion between [Ms Mendicino] and [Dr V] on 28 January 2014 where [Dr V] recorded notes that included the words “Discussed major document.  My report.  Lawyer relationship to looking after children be clear damaged but not nutcase.  Need to fix report as discussed”.

   …

   (original emphasis)

6. By reference to a comparison between the draft reports in Exhibit 1 and the report annexed to Dr V’s affidavit, the husband’s argument is that the noted discussion on 28 January 2014 between the wife and Dr V brought about an alteration, contended to be consistent with the note, to Dr V’s report in its final form.  Specifically, it was submitted by senior counsel for the husband that neither of the two draft reports in Exhibit 1 contain these passages appearing in the final report:

   …Furthermore, repeated administrations of this questionnaire have not shown evidence of irritability of extreme reactivity that could adversely affect her ability to care for her children.

   After some 14 sessions I have not seen any evidence of psychological characteristics that would render [Ms Mendicino] as not able adequately to care for and manage her children.  In fact it has been clear that she is a thoughtful, caring and devoted mother who makes her children’s welfare the highest priority in her life.

7. Senior counsel’s submission that neither of the draft reports in Exhibit 1 contain the above passages is not correct.  One of them, referred to by senior counsel as the “second draft report” said by him to bear a patently erroneous date (18 February 2014) because it is a draft which precedes what is accepted to be the final report, in fact contains the passages referred to.  These are contained within the last bulleted point on the last page, and in the following paragraph of that draft report.

8. I will proceed on the basis that the “second draft report” in Exhibit 1 and the final report annexed to Dr V’s affidavit both post-date the discussion between the wife and Dr V on 28 January 2014.

9. The central contention on behalf of the husband is that it is to be inferred from the note of 28 January 2014 that the wife disclosed the substance of her legal advice to Dr V, and thereby impliedly waived legal professional privilege with respect to that advice. 

10. Senior counsel for the husband initially submitted that this central contention was underscored by what was submitted to be a mandatory requirement within the Family Law Rules 2004 (Cth) (“the Rules”) that any instructions to an expert for the purpose of providing a report for use in proceedings are to be in writing (and disclosable).

11. However, as was pointed out during argument, r 15.41(1) expressly provides that the whole of Part 15.5 of the Rules (other than r 15.55) does not apply to evidence from an expert of the kind identified in that rule provided the evidence is of a kind likewise identified in that rule. It was not contended that Dr V did not meet the description of an expert of the kind described in that rule nor that his report did not meet the description of evidence described in that rule.

12. In my judgment it is instructive that with respect to an expert, conveniently described as a “treating doctor” being an expert of a kind referred to in r 15.41, only r 15.55 within the whole of Part 15.5 which deals with expert evidence applies to the evidence of such an expert.

13. That is, r 15.55 abrogates legal professional privilege in mandating disclosure of the report, but it is not directed to any instructions for the report. Whilst r 15.41(1) expressly preserves the operation of r 15.55 (and otherwise excludes Part 15.5) it does not also preserve the operation of r 15.54 which deals with the instructions to an expert witness including, in r 15.54(2), the requirement for such instructions to be in writing.

14. The deliberate choice in the Rules to abrogate privilege only in respect of the report itself, but not to apply also the “instructions” rule (r 15.54(2)) tends to the opposite conclusion to that submitted by senior counsel for the husband, given that such submission was based upon the erroneous contention that in this instance the Rules mandate that the instructions for the report, the “instructions” rule in 15.54, applied.

15. In Interchase Corporation Ltd (In Liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) (1999) 1 Qd R 141 (“Interchase”) the Queensland Court of Appeal, in considering the operation of a rule of the Supreme Court to similar effect as r 15.55(4) of the Rules unanimously held that neither the operation of that rule, nor the general law as to legal professional privilege, dictated the conclusion that such privilege did not attach to instructions for such a report, as distinct from documents not themselves privileged, supplied to the expert for the purpose of preparing a report.

16. Thomas J (with whom the Chief Justice agreed) said (at p 160):

    … It is desirable that the rules be such that the courts, or the adversary, be able to explore fairly fully the circumstances of the formation of the opinion.  It is also necessary in some cases to explore the circumstances and nature of the retainer.  However, to the extent that communications of this kind (commonly called “instructions”) are made solely for the purpose of use in litigation and are intended to be confidential, such instructions are generally thought to enjoy protection.

    “There is, in my judgment, a clear and important distinction to be drawn between, on the one hand, instructions given to an expert witness and, on the other hand, the expert’s opinion given pursuant to those instructions.  The instructions are covered by legal professional privilege.  The opinion is not.”

    (W. v. Egdell [1990] Ch. 359, 396, per Scott J.)

17. Thomas J also referred (at p 162) to the statement of McHugh J in Commissioner of Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 552 underlining the fundamental point that the subject matter of privilege is communications in the following statement:

    “This point, however trite it may seem, is fundamental to the determination of the present appeal.  Much of the confusion present in the case law arises from a failure to apply it.  Legal professional privilege is concerned with communications, either oral, written or recorded, and not with documents per se.”

18. In Interchase the distinction between communications with the expert, on the one hand, and documents supplied to an expert which are not in themselves privileged, on the other, was also discussed (at p 148) by Pincus JA (with whom the Chief Justice and Thomas J also agreed); with reference to R v King [1983] 1 All ER 929 (an authority relied upon here by the husband). In the course of that discussion Pincus JA referred to the case of Ward (1981) 3 A.Crim.R. 171 (“Ward’s case”), a decision of the New South Wales Court of Appeal.  Pincus JA said:

    To return to the authorities relating to witness’ document privilege, I have noted an Australian case which was decided before R. v. King and before W. v. Egdell; it is Ward (1981) 3 A.Crim.R. 171.  That was an appeal from a verdict given in a trial in the New South Wales Supreme Court consequent upon the decision in Ward (1980) 142 C.L.R. 308. Before the trial Ward was examined by a psychiatrist retained by the defence, but the psychiatrist was in the event called by the Crown. The evidence given:

    “… comprised information placed before Dr. Barclay by the appellant’s advisers in documentary form and by the appellant himself in interview, and the opinions formed in consequence by Dr. Barclay and conveyed by him to the appellant’s advisers.” (179)

    The Chief Justice held that:

    “the communications which passed between Dr. Barclay and the appellant were protected by legal professional privilege and hence … it was not permissible for the Crown to elicit from him … the account given by the appellant to Dr. Barclay of the events of the shooting”. (175)

19. At p 149 Pincus JA observed that Lee J in Ward’s case held that what the appellant Ward told the doctor and the opinion he formed from that account were the subject of legal professional privilege.

20. Having regard to the analysis by Pincus JA and Thomas J respectively in Interchase and to the important distinction between, on the one hand, non-privileged documents supplied to an expert who is to provide an opinion, and communications with an expert for the purpose of obtaining a report for use in litigation, on the other; I am not persuaded that a communication for the dominant purpose of obtaining a report from a treating doctor for use in litigation loses its privileged status simply because it is an instruction for a report that is to be disclosed.

21. However, self-evidently paragraph 4(e) of this application is not directed simply to obtaining disclosure of the instructions given to Dr V.  It is not even confined to any instructions given to Dr V by the wife on 28 January 2014.  Rather, the contention is that on the assumed basis that in the subject discussion on 28 January 2014 the wife made reference to her legal advice in instructing Dr V as to his report, the wife has thereby impliedly waived privilege to any and all communications between her lawyers and herself “for the purpose of assisting the wife in engaging in discussions with the doctor”, presumably at any time or throughout the wife’s therapeutic treatment by Dr V.

22. In my judgment the ill-defined but obviously wide breadth of what is sought by paragraph 4(e) is relevant to the test to be applied for determining whether there has occurred an implied waiver of privilege.

23. In Mann v Carnell (1999) 201 CLR 1 Gleeson CJ, Gaudron, Gummow and Callinan JJ stated at [29]:

    …What brings about the waiver is the inconsistency, which the courts, where necessary informed by the consideration of fairness, perceive, between the conduct of the client and the maintenance of confidentiality; not some overriding principle of fairness operating at large.

24. In Osland v Secretary to the Department of Justice (2008) 234 CLR 275 the High Court considered a case where the Victorian Government had obtained confidential legal advice concerning a petition for mercy and the Attorney‑General then issued a press release which stated, in part, that the “advice recommends on every ground that the petition should be denied.” Applying Mann v Carnell all members of the High Court concluded that there was no inconsistency between disclosing the fact of, and the conclusions of, the advice for the purpose of informing the public that the Government’s recommendation was based on independent legal advice, and wishing to maintain the confidentiality of the advice itself.

25. At [49] Gleeson CJ, Gummow, Heydon and Kiefel JJ observed that:

    Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case … questions of waiver are matters of fact and degree…

26. In my judgment, even putting the assumed content of the discussion between the wife and Dr V on 28 January 2014 at its highest in terms of reference to the wife’s legal advice, I am not satisfied that in circumstances where the wife was obtaining a report from her treating doctor, it was inconsistent with her maintaining the confidentiality of her legal advice to make some reference to that advice for the purpose of her discussion with Dr V.

27. For these reasons, I do not consider that there has been implied waiver by the wife as to her legal advice and paragraph 4(e) of the subject application is dismissed.

28. I will reserve the costs of the applicant wife and the first respondent husband of and incidental to paragraph 4(e) of the Application in a Case to the trial to be determined in association with any other costs issues.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 26 June 2015.

Associate:

Date:  26 June 2015