Mumford and Mumford

[2010] FamCA 539

FAMILY COURT OF AUSTRALIA

MUMFORD & MUMFORD [2010] FamCA 539

FAMILY LAW – PROPERTY SETTLEMENT – SUBPOENAS – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Mumford

RESPONDENT: Mr Mumford

FILE NUMBER: DNC 288 of 2007

DATE DELIVERED: 19 March 2010

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Strickland J

HEARING DATE: 19 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Roennfeldt

SOLICITOR FOR THE APPLICANT: Withnalls

COUNSEL FOR THE RESPONDENT: Ms McLaren

SOLICITOR FOR THE RESPONDENT: Asha McLaren

Orders

1. That the wife and her legal representatives have leave to inspect and copy the documents produced pursuant to the subpoena to Brydens solicitors SAVE AND EXCEPT the documents now contained in an envelope on which the word “privileged” is written.

2. That the application in a case filed by the wife on 1 September 2009 be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 288 of 2007

MS MUMFORD

Applicant

And

MR MUMFORD

Respondent

EX TEMPORE REASONS

1. This matter is before me today on an application by the wife seeking leave to inspect certain documents produced pursuant to a subpoena to the husband’s solicitors in New South Wales.  The husband claims legal professional privilege in relation to some, at least, of the documents sought to be inspected by the wife.  In hearing the matter today it was clarified that the three documents that were specifically sought to be inspected are firstly, a letter of 23 November 2007 and a letter or a document annexed to that, a letter of 24 July 2008, and a letter of 14 August 2008 and the annexures to that letter.

2. Those three letters are all letters from the husband’s solicitors in New South Wales to him.  After hearing argument what has occurred is that Ms Roennfeldt does not press her application for leave to inspect the letters of 23 November 2007, 24 July 2008, or 14 August 2008.  She did press though, her application for leave to inspect the annexures to the letter of 14 August 2008.  Those annexures comprised an offer to compromise, and what I will term a draft consent judgment.

3. As I said, legal professional privilege was claimed for all of these documents, including those two.  Ms Roennfeldt’s submission was that the husband has waived that privilege, and I was taken to various paragraphs of the wife’s affidavit and the husband’s affidavit filed in this matter, as well as correspondence from the husband’s solicitor to the wife’s solicitor.  It became immediately apparent to me that privilege had been waived in relation to the very last offer received by the husband in the proceedings in New South Wales, and at the end of the day, I think I am right in recording that that was conceded by Ms McLaren.

4. Thus the wife should have leave to inspect those documents.  And what I have done is extracted those documents, and placed them with the other subpoenaed documents.  I have left, though, in an envelope, on which is written “privilege”, the letters of 23 November 2007 and 24 July 2008, and the letter of 14 August 2008, on the basis that Ms Roennfeldt, as I say, does not press to inspect those at this stage, but that may become an issue during the trial of this matter.  Thus they can remain in that separate envelope, and at this stage, because there is no application, I will not make any order about inspection of those documents.

5. Separate to that, I have taken both counsel to their respective client’s application and response.  I have raised issues with Ms Roennfeldt firstly, in relation to her client’s application, and in particular, as to paragraphs 4 and 5.  It seems to me that there are real issues in terms of whether this Court has the jurisdiction to make the orders sought, and Ms Roennfeldt is going to consider that and take instructions.  I have said though, that prima facie, unless they are amended, or unless there is some submission which convinces me beyond what has been said today, those orders can be made by this Court I would propose to dismiss those two paragraphs.  Ms Roennfeldt says she can sort that matter out before the next hearing, which is before a Registrar in April. 

6. With the response, I have raised with Ms McLaren, paragraphs 2 through 35 and queried with her the basis for those orders being sought.  It seems that the only basis is by way of enforcement, but Ms McLaren has conceded that, for example, in relation to paragraphs 3 through 35, the specifics set out there are not in fact, consistent with the order which would be sought to be enforced.

7. Thus Ms McLaren needs to also take a step back, consider her position, and take instructions.  As currently advised, I would be dismissing paragraphs 2 through 35, but I will give the opportunity to Ms McLaren to sort that issue out, and she says also she can do that by the hearing before the Registrar in April 2010.

8. These remarks obviously will be available to the Registrar on that day, and she can take that up with counsel at that time.

I certify that the preceding 8 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 19 March 2010.

Associate