Milton and Milton

[2008] FamCA 392

FAMILY COURT OF AUSTRALIA

MILTON & MILTON [2008] FamCA 392

FAMILY LAW – PRACTICE AND PROCEDURE – Production of documents

Family Law Act 1975 (Cth)

Esso Aust Resources Ltd  v Commissioner of Taxation (Cth) (1998) 83 FCR 511
Mann v Carnell (1999) 201 CLR 1
Attorney-General (NT) v Maurice (1986) 161 CLR 475
Goldberg v Ng (1995) 185 CLR 83

APPLICANT: Mrs Milton

RESPONDENT: Mr Milton

FILE NUMBER: SYF 3542 of 2006

DATE DELIVERED: 6 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Judicial Registrar Loughnan

HEARING DATE: 5 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT: Barkus Edwards Doolan

COUNSEL FOR THE RESPONDENT: Mrs Knox

SOLICITOR FOR THE RESPONDENT: Shipton & Associates

Orders

1. Within 14 days of the date of this Order, each of:

1.1    the husband; and
           1.2    Shipton & Associates (the lawyers for the husband);

shall deliver to the solicitors for the wife all records of written and oral communications, advices and instructions (including but not limited to file notes, letters, faxes, advices, briefs, emails, and reports) between the husband and/or any lawyer or lawyers acting on his behalf and/or any expert retained and/or any treating medical practitioner, in respect of each of the following matters:

1.3    the health of the husband;
           1.4    the date of cessation of the personal relationship between the parties; and
           1.5    the extent of the husband’s alcohol consumption.

1. Leave is granted to the parties to restore the proceedings before Judicial Registrar Loughnan, by arrangement with his associate and the other parties other in relation to the time for compliance with order 1 or in relation to the conduct of the interim parenting proceedings generally.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3542 of 2006

MRS MILTON

Applicant

And

MR MILTON

Respondent

REASONS FOR JUDGMENT

1. There are parenting and property proceedings before the Court. The matter before me is an application by the wife for certain information from the husband and his solicitors. In a Response to an Application in a Case filed 4 April 2008 the wife seeks, among other orders:

   “1.That within 14 days of the date of this Order, each of:

   1.1the husband; and

   1.2Shipton & Associates (the lawyers for the husband);

   deliver to the solicitors for the wife all records of written and oral communications, advices and instructions (including but not limited to file notes, letters, faxes, advices, briefs, emails, and reports) between the husband and/or any lawyer or lawyers acting on his behalf and/or any expert retained and/or any treating medical practitioner, in respect of each of the following matters:

   1.3      the health of [the husband];

   1.4the date of cessation of the personal relationship between [the husband] and [the wife];

   1.5the extent of [the husband’s] alcohol consumption;

   and to the extent that any such instructions or advices were oral and not recorded in writing, that a minute be prepared in written form setting out the nature and content, date of, and persons present during, any such oral communications.

2. I was told by learned counsel for the wife, without demur from learned counsel for the husband, that the controversial aspects of the application relate only to communications between the husband and his solicitors and to that aspect of the orders sought contained in the last four lines of the order sought. Thus there is no dispute about the provision of written records of communication between the husband or his lawyers and an expert or treating practitioner.

Short history

1. A Report from a Dr S in relation to the husband, commissioned by his solicitors was not initially discovered or provided to the wife’s solicitors. Indeed the report came to light as a result of a subpoena issued to Dr S at the application of the wife. The report sought for the express purpose of supporting a particular argument in the husband’s case – that the wife contributed to the husband suffering the onset of bipolar disorder or to a subsequent breakdown after the disorder commenced. Not only did the resultant report not support that argument but it raised an issue, excessive consumption of alcohol, that would likely be harmful to the husband’s case.

Background

1. The effect of the husband’s evidence[1] in the substantive proceedings is that:

·in October 2004 he suffered a breakdown that was later diagnosed as bipolar Type 2 disorder;

·he medically retired from teaching on 17 May 2006;

·in July 2006 the final deterioration of his relationship with the wife and conflict between them precipitated a further breakdown. He consumed too much alcohol at that time;

·since then the husband has been prescribed Effexor and Xanex, has had regular attendances with his doctors and there have been no problems with his capacity to care for and spend time with the child.

[1] Paragraph 81 of his affidavit of February 2008

1. On 15 August 2006 the husband’s solicitors instructed two treating doctors (Dr S and Dr Q) to co-operate with the single expert appointed in the proceedings, Dr K. The letters were in similar terms as follows:

   RE:  [THE HUSBAND]

   We act on behalf of [the husband] in relation to proceedings in the Family Court at Sydney relating to issues concerning our client's son, […], and adjustment of property interests between [the husband] and his wife.

   We understand that [the husband] has consulted and continues to consult you in relation to his medical condition and note that it will be necessary for us to speak with you regarding our mutual client's condition and possibly to obtain a formal report in due course. We also note that, pursuant to orders made in the Family Court. on 7 August 2006, [the husband] is to submit himself for a psychological assessment to be carried out by Dr [K] and it may he necessary for us to speak with you regarding Dr [K’s] findings. Pursuant to the court orders, it will be necessary for you to provide any necessary assistance required by Dr [K] to facilitate the preparation of his report.

   We enclose herewith an authority by [the husband] to allow you to provide any necessary information and to discuss the matter with either Janet Scott or Michael Shipton of our firm and will speak with you in the near future regarding the progress of the matter.

   Should you have any queries in the meantime, please do not hesitate to contact our office.

2. On 30 March 2007 the husband’s solicitors instructed Dr S as follows:

   RE:  [THE HUSBAND]

   As you are aware, we act for [the husband] in his family law matter.

   [The husband] reports that at the time of the onset of his illness in approximately 1998 he had been subject to considerable emotional stress arising from the breakdown in intimacy between himself and his wife. We are instructed that in 1994 or 1995 the parties' sexual relationship ceased and thereafter [the husband] slept in a separate bed. In the event that the parties were located in a hotel with only one bed, [the husband] often slept on the floor in the bathroom.

   Further, we are instructed that in about 2003 all physical relations between the parties ceased when [the wife] said to our mutual client words to the effect of "I do not ever want you to touch me again".

   We are instructed that [the husband] sought his wife's support and help in dealing with his bipolar condition and requested that she attend appointments with yourself. We understand that [the wife] both failed to supply support and declined to attend the requested appointments.

   [The husband] reports that the last major bipolar episode arose when [the wife] advised him that she intended to terminate the marriage and took [the child] away without telling [the husband] where they were.

   We understand that [the husband] has discussed these events with Dr [Q] who has expressed the opinion that these events contributed to the onset of [the husband’s] bipolar condition and to the reoccurrence of major bipolar episodes. We should be glad if you would let us have your opinion in relation to same.

1. On 10 April 2007 Dr S wrote back in the following terms:

   Dear Ms Scott

   [THE HUSBAND] dob […]

   Thank you very much for your letter and the historical detail contained therein. I am happy to offer my thoughts on the issues you raise.

   [The husband] first consulted me on 22nd of February 2006. On the strength of my initial interview with him, I made a tentative diagnosis of a bipolar affective disorder. This was based upon his description of intense swings of mood, beginning in his early twenties. My view was supported by his description of a family history of a bipolar mood disorder. As I was not confident of my diagnosis, I asked whether I might see [the husband] with his wife; a conventional manoeuvre to assist in assessment of this very variable condition. Unfortunately, [the husband] had not made the tenuous nature of his marital relationship quite clear to me and I wondered if it might me as a consequence of this that I did not see him for some time.

   I vigorously pursued treatment of [the husband’s] depressive and anxiety symptoms, but without any improvement in his emotional discomfort. I then learnt from other sources that [the husband] had not been entirely accurate in his description of his alcohol intake. He was described as consuming up to twenty schooners of beer in a day. His physical appearance was consistent with an excess of alcohol as were his liver function tests. In retrospect, I wondered if the tremor and sweating I observed on his first visit and interpreted as anxiety, may in fact have been alcohol withdrawal.

   An excess of alcohol can mimic many psychiatric disorders, especially an affective illness. My concern about [the husband’s] alcohol intake increased as my confidence in the diagnosis of a bipolar affective disorder diminished. [The husband] was then admitted to the […] Hospital on the 26^th of July last year, in what was described as an aggressive, suicidal and intoxicated state. He was then assessed by Professor [P], who felt that he was suffering the effects of chronic alcoholism, which [the husband] tended to minimise, but not from a bipolar illness. I would regard the opinion of Professor [P] as the definitive judgement.

   Thus the report that the "last major a bipolar episode arose when [the wife] advised him she intended to terminate the marriage" must be considered against the background of [the husband’s] apparent tendency to manage his emotions with alcohol.

   I must also add that even if the diagnosis of a bipolar disorder were confirmed, the history would suggest its onset long before his relationship deteriorated with his wife, that is, in his early twenties. Most authorities would agree that distressing events in later life can precipitate swings of mood in an established bipolar affective disorder or precipitate a first episode in someone genetically predisposed, but are probably not causally related to the presence or absence of such a condition.

   I regret that my report may not be of great help to this pleasant man. When I last saw him, [the husband] assured me his alcohol intake was greatly reduced and that he was being well supported by friends. He seemed optimistic about the future and I would like to believe that this supports the point of view that his distress might have been related to events and to alcohol, rather than a mood disorder.

1. Neither the letter of 30 March 2007 nor the report of Dr S of 10 April 2007 were disclosed to the wife’s solicitors.

2. On 14 February 2008 subpoena issued to Dr S on the application of the wife’s solicitors. I understand that the letter and the report were produced in response to that subpoena and without objection, leave was granted for the inspection of those documents.

Submissions

10.It is submitted for the wife that the critical question in the case is whether the husband intended to put information relevant to the issues of his health, the duration of cohabitation and his consumption of alcohol, into the public domain. It is submitted that if he did, he is deemed to have waived privilege that would otherwise attach to communications with his lawyer on those topics. It is submitted that by letters dated 15 August 2006 instructing two treating doctors (Dr S and Dr Q)  to co-operate with the single expert, Dr K and by a letter to Dr S dated 30 March 2007, information about those issues was put into the public domain. It is submitted that this case can be distinguished from the normal situation because in the letter of 30 March 2007, in particular, the husband’s solicitor included information from the husband that was intended to be taken into account by the expert. Often a solicitor would simply ask the expert to examine the client and may refer to other sources of information such as affidavits filed in the proceedings and treating practitioners.

11.It is submitted on behalf of the husband that the instructions to Dr S were of very narrow compass, did not extend to the three issues referred to in the order sought and that the information provided was merely by way of background. As to the heart of the matter it is submitted that the key to the common law in this area is fairness. It is submitted that there could be no unfairness to the wife in this instance because the report would not be relied on by the husband, nor would he make the contention that the wife had some involvement in the onset of the condition or in the subsequent breakdown. The report is unhelpful to the husband’s case and if it comes into evidence that will only be if the wife puts it into evidence. It is submitted that every relevant piece of evidence going to Dr S’s opinion will be available to the wife. She could call Dr S in the proceedings and extract through him, every piece of evidence that informed his opinion or could have informed that opinion. It is further submitted that the issues of the husband’s health and his consumption of alcohol are not issue of critical importance in the parenting case. It is submitted that the child in question is 15 years of age and not an infant. He is capable of protecting himself and therefore the husband’s health and alcohol consumption will have little relevance. It is submitted that the requirement to reduce oral communications to writing, where no writing exists is unfair and unrealistic. It is submitted that the resultant record would be so unreliable as to be on no value.

12.In reply on behalf of the husband it is submitted that the requirement of reducing oral communication to writing will only be a problem if there were relevant oral communications for which no file note was made and in that event the wife is entitled to the information. It is submitted that whether of critical importance in the parenting proceedings or not, the questions of the husband’s health and his consumption of alcohol are certainly relevant.

The law

13.There is a claim for legal professional privilege in the context of a call for production of documents.

14.In Esso Aust Resources Ltd v Commissioner of Taxation (Cth) (1998) 83 FCR 511 at 519 Black CJ & Sundberg J of the Federal Court of Australia said:

The common law position is that where there is no intentional waiver of privilege, the question whether waiver should be imputed depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that the material, or material associated with it, is privileged from production: Attorney-General (NT) v Maurice (1986) 161 CLR 475; Goldberg v Ng (1995) 185 CLR 83.

15.Although not the unanimous view of the Full Court bench of five, it was accepted by the majority in that case that the provisions of the Evidence Act 1995 in relation to client legal privilege (ss 118 et seq) do not extend to pre-trial discovery. That is the basis on which the matter has been argued before me.

16.At pages 558 & 559 Finklestein J traced the history of legal professional privilege in the following terms:

Legal professional privilege, the oldest of the privileges for confidential communications known to the common law, dates back to the sixteenth century. In its original formulation it was restricted in its operation to an exemption from testimonial compulsion. Its objective was to protect the "oath and honour" of the lawyer who was bound to keep confidential the instructions of his client: see Holdsworth, A History of English Law, vol 9, pp 201-202; Wigmore, Evidence (McNaughton Revision) (1961), par 2290; Baker v Campbell (1983) 153 CLR 52 at 126-127.
By the nineteenth century it was accepted that all communications by a client to his lawyer for the purpose of obtaining legal advice were protected from compulsory disclosure, whether by testimony or by the production of documents, at least in the case where that advice had been sought in relation to existing or anticipated litigation.
The classic statement of the policy that lies behind the privilege is that of Lord Brougham LC in Greenough v Gaskell (1833) 39 ER 618 at 620-621:

"The foundation for the rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers.
But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skilful persons or would only tell his counsel half his case."

17.In Mann v Carnell (1999) 201 CLR 1 the High Court said at page 14:

Waiver of privilege at common law
[28] At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that "waiver" is a vague term, used in many senses, and that it often requires further definition according to the context Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilegehttp://thomsonnxt4/links/Handler.aspx?tag=ce703ff1906a56386dd3c3f48d2fbc1c&product=cl. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communicationhttp://thomsonnxt4/links/Handler.aspx?tag=ab475bbcf46037294c51e73c1010b757&product=nswlr, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.
[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. Thus, in Benecke v National Australia Bank the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. 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.  [footnotes omitted]

The exercise of discretion

18.It seems to me that the concluding sentences of the words from Mann v Carnell above describe the crux of the matter before me.

19.The letter of 30 March 2007 is very different to the letters of 15 August 2006. The latter are formal communications and appear to contain no privileged information.

20.By the letter of 30 March 2007 the solicitors expressly go beyond information sourced solely from non-privileged documents. The husband has given instructions to his solicitor about facts relevant to the issues of his health (including specific references to a bipolar disorder) and to the termination of his relationship with his wife. At least some of those facts were then set out in a letter to Dr S. Hence in that letter:

…
We are instructed that in 1994 or 1995…
…

Further, we are instructed that in about 2003 ….
…
We are instructed that [the husband] sought his wife's support …

21.There was no objection to the letter or Dr S’s report being produced and inspected.

22.It is arguable that by that course of events the husband expressly disclosed what would otherwise be privileged communications and thereby waived the privilege.

23.Assuming that he did not, the question of unfairness to the wife does not rest with the husband’s reliance on Dr S’s opinion or on the husband pursuing or abandoning a particular line of argument. He has said he will do neither. The husband having released what was otherwise privileged information on relevant issues, it would be unfair if the wife was prevented from exploring those aspects of communication between the husband and his solicitor that directly bear on those issues.

24.As if to confirm the potential mischief there are the facts that the report was not discovered and that the subject matter of the communications is relevant to the proceedings.

25.The husband failed to discover Dr S’s report[2]. It is not, as one might infer from the submissions made on behalf of the husband, a matter of the stage to which the parties’ settlement discussions on parenting issues had advanced. These disclosures would be required of a party joining in proceedings for the making of orders by consent.

[2] see Rule 15.55

26.It is beyond question that the issues of the husband’s health and his consumption of alcohol are relevant to the parenting proceedings. By the references in section 75(2) they are also relevant to property proceedings. I was told by learned counsel for the husband that the date of the conclusion of the parties’ relationship is also a relevant issue in the substantive proceedings.

27.As to the bringing into being of a record of things not otherwise recorded, by definition that goes beyond the production of a document. There are issues of the questionable probative value of the recollections of the husband and his solicitor over a two year period, unassisted by any file note or other writing being now reduced to writing and produced to the wife. For those reasons I will not include in the order, the requirement to create a document where no document currently exists.

28.The order sought calls for the husband and his solicitor to have 14 days to comply. I was told that the material would be relevant to a hearing before me next week and that there may be problems for that hearing if the material was produced late. I will make the order as asked but will give leave to the parties to argue for a change in the form of the orders. It would of course be open to the husband and his solicitors to comply within the time frame in any event. It may be that the removal of the requirement for documents to be created may allow earlier compliance than might otherwise have been the case.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Judicial Registrar Loughnan

Associate: 

Date:  6 June 2008