Middendorp v Lygina [No 2]

Case [2021] WASC 431

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   MIDDENDORP -v- LYGINA [No 2] [2021] WASC 431

CORAM:   STRK J

HEARD:   24 NOVEMBER 2021

DELIVERED          :   3 DECEMBER 2021

FILE NO/S:   CIV 2033 of 2021

BETWEEN:   MICHAEL CHRISTOPHER MIDDENDORP

Plaintiff

AND

IRINA LYGINA

Defendant


Catchwords:

Equity - Restraint of confidential information protected by legal professional privilege - Equitable duty of trust and confidence - Injunctions sought to permanently restrain disclosure of confidential information in the possession of the defendant - Whether the defendant should be restrained from seeking to adduce confidential information protected by legal professional privilege in proceedings before the Magistrates Court of Western Australia which concerns the defendant's application for a family violence restraining order under the Restraining Orders Act 1997 (WA) - Whether the defendant should be restrained from seeking to adduce confidential information protected by legal professional privilege in proceedings before the Family Court of Western Australia which concern a child under the Family Court Act 1997 (WA)

Legislation:

Evidence Act 1995 (Cth)
Family Court Act 1997 (WA)
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Declaration made
Injunctive relief granted

Category:    B

Representation:

Counsel:

Plaintiff : E Greaves
Defendant : M Holler

Solicitors:

Plaintiff : Leach Legal
Defendant : Lawley Legal

Case(s) referred to in decision(s):

AG Australia Holdings Ltd v Burton [2002] NSWSC 170

Attorney‑General (NT) v Maurice (1986) 161 CLR 475

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 492

B v Auckland District Law Society [2003] 2 AC 736

Carter v The Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121

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

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107

Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646

Goddard v Nationwide Building Society [1987] QB 670

Grant v Downs (1976) 135 CLR 674

Hutchings v Clarke (1993) FLC 92-373

In the marriage of CW (1988) 22 Fam LR 750

ISTIL Group Inc v Zahoor [2003] 2 All ER 252

Johns v Australian Securities Commission (1993) 178 CLR 408

Lord Ashburton v Pape [1913] 2 Ch 469

Middendorp v Lygina [2021] WASC 409

Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414

Potter v Minahan (1908) 7 CLR 277

R v Secretary of State for the Home Department, ex parte Simms [1999] 3 All ER 400

S & K [2007] FCWA 17

Sullivan v Sclanders [2000] SASC 273

Valantine v Technical and Further Education Commission [2007] NSWCA 208

STRK J:

Summary

  1. The plaintiff and the defendant were partners in a de facto relationship which in or about late 2020 or early…

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AGLC
Middendorp v Lygina [No 2] [2021] WASC 431
Case
[2021] WASC 431
Decision Date

CaseChat Overview and Summary

The case of Middendorp v Lygina [No 2] involved the plaintiff, Middendorp, and the defendant, Lygina. The dispute centred on the application of legal professional privilege in child-related proceedings under the Family Law Act and the Restraining Orders Act. The court was tasked with determining whether the rules of evidence, specifically legal professional privilege, were abrogated or modified in child-related proceedings under these acts. The plaintiff argued that the statutory language did not clearly and unambiguously abrogate or modify legal professional privilege, while the defendant contended that the privilege had been abrogated by implication.

The court considered the language of the Family Law Act and the Restraining Orders Act, noting that neither statute contained clear, unambiguous words that would abrogate legal professional privilege. The court also highlighted that the Family Court Rules provided a mechanism for claiming privilege from production, which supported the argument that privilege had not been abrogated. The court found that the absence of explicit language in the statutes, along with the inclusion of a privilege mechanism in the Family Court Rules, indicated that legal professional privilege remained intact in child-related proceedings.

In light of the above, the court ruled that legal professional privilege was not abrogated by the Family Law Act or the Restraining Orders Act. The reasoning was grounded in the principle that fundamental rights such as legal professional privilege could only be overridden by clear and unambiguous statutory language, a principle the court found to be absent in the relevant statutes. This decision aligns with the precedent set in Valantine v Technical and Further Education Commission, where the court similarly found no abrogation of privilege due to the lack of clear language.

The final order of the court was that legal professional privilege remained applicable in child-related proceedings under the Family Law Act and the Restraining Orders Act, and that the provisions of the Evidence Act relating to legal professional privilege were not abrogated in such proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 69ZT of the Family Law Act relevantly provides:69ZTRules of evidence not to apply unless court decides(1)These provisions of the Evidence Act 1995 do not apply to child related proceedings:(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re examination and cross examination), other than sections 26, 30, 36 and 41;Note: Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).… Counsel for the plaintiff noted that s 69ZT does not refer to pt 3.10 of the Evidence Act, which deals with privileges, and in particular, deals with 'client legal privilege' in div 1 of pt 3.10.[23] It was said that inclusion of pt 3.10 as an excluded rule of evidence would have abrogated or modified legal professional privilege as a rule of evidence in child related proceedings by clear, unambiguous words. Further, as legal professional privilege was not included within the meaning of 'excluded rules of evidence', it was not intended to be abrogated or modified. Counsel submitted that the decision not to include it must have been a conscious decision by Parliament.[24][23] ts 99, 122 (24 November 2021).[24] Plaintiff's submissions filed 23 November 2021 par 33; ts 99 (24 November 2021). Counsel also submitted that the plaintiff's submission that there has been no abrogation of legal professional privilege in child related proceedings is entirely consistent with the Family Court Rules 2021 (WA) (which I note apply to jurisdictions which include the non-federal jurisdictions of the Family Court of Western Australia).[25] That is because r 209 of the Family Court Rules provides a mechanism for a party to object to giving disclosure to the other party where the producing party claims privilege from production. Counsel noted that while the reference to privilege is not defined, from its context it clearly extends to the important common law privileges upon which production of materials may be resisted.[26] Counsel submitted that the inclusion of a rule that provides a mechanism for the claiming privilege from production is consistent with there having been no abrogation of privilege in the Family Court Act. Again, counsel for the plaintiff submitted that the language of the Restraining Orders Act does not contain clear, unambiguous language that abrogates legal professional privilege. Further, the plaintiff said that the defendant's submission that there is abrogation by necessary implication was not made out. The plaintiff submitted that the parallels of this case with Valantine v Technical and Further Education Commission are obvious. The wording of the statute considered by the New South Wales Court of Appeal (the Government and Related Employees Appeal Tribunal Act 1980 (NSW)), bore a close resemblance to s 44A of the Restraining Orders Act. Counsel for the plaintiff submitted that the reasoning in Valantine v Technical and Further Education Commission is plainly correct and entirely apposite.[27][27] Plaintiff's submissions filed 23 November 2021 par 34; ts 100 (24 November 2021).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As to the applicable principles, the plaintiff submitted that clear, unambiguous language was required, as fundamental rights cannot be overridden by general or ambiguous words.[22] Further, the plaintiff accepts that legal professional privilege can be abrogated by statute: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Valantine v Technical and Further Education Commission [2007] NSWCA 208 [37]. But again, only by clear words or necessary implication.[22] Plaintiff’s submissions filed 19 November 2021 par 7, citing R v Secretary of State for the Home Department, ex parte Simms [1999] 3 All ER 400; and Potter v Minahan (1908) 7 CLR 277, 304. When regard is had to the Restraining Orders Act and to the Family Court Act, counsel for the plaintiff submitted that legal professional privilege is neither abrogated by clear words nor by necessary implication. As to the Family Court Act, counsel drew the court's attention to s 202H. Section 202H is a section within pt 5 (which is headed 'Children'), div 11A (which is headed 'Principles for conducting child related proceedings'), sub-div 4 (which is headed 'Matters relating to evidence'), and provided as follows:202H.Rules of evidence not to apply unless court decides - FLA s. 69ZT(1)The excluded rules of evidence do not apply to child related proceedings.(2)A court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1906 or the rules of evidence not applying because of subsection (1).(3)Despite subsection (1), a court may decide to apply one or more of the excluded rules of evidence to an issue in the proceedings, if - (a)the court is satisfied that the circumstances are exceptional; and(b)the court has taken into account (in addition to any other matters the court thinks relevant) - (i)the importance of the evidence in the proceedings; and(ii)the nature of the subject matter of the proceedings; and(iii) the probative value of the evidence; and(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence. (4)If a court decides to apply an excluded rule of evidence to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the application of the excluded rule of evidence.(5)Subsection (1) does not revive the operation of - (a) a rule of common law; or(b) any written law, that, but for subsection (1), would have been prevented from operating because of an excluded rule of evidence.(6)In this section - child related proceedings includes proceedings that are child related proceedings within the meaning of the Family Law Act;excluded rules of evidence means such provisions of the Evidence Act 1906 and the rules of evidence as most closely correspond to the provisions of the Evidence Act 1995 of the Commonwealth referred to in section 69ZT of the Family Law Act.