Newsome & Newsome

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Newsome & Newsome [2025] FedCFamC2F 747   

File number(s): HBC 764 of 2024
Judgment of: JUDGE TAGLIERI
Date of judgment: 5 June 2025
Catchwords:  FAMILY LAW – Subpoena objection on behalf of respondent – on grounds of oppression and a fishing expedition – further objection on grounds of legal professional privilege over documents produced by his solicitor relating to a discretionary trust – Subpoena not oppressive - whether documents produced subject to legal professional privilege – whether legal professional privilege has been waived – legal professional privilege was waived by conduct  
Legislation: Family Law Act 1975 (Cth) ss 79, 106B, 90AG
Cases cited:

Biondi & Koen (No 8) [2025] FedCFamC1F 26

Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341

Council of the NSW Bar Association v Archer (2008) 72 NSWLR 236

DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384

Goudarzi & Bagheri [2017] FamCA 656

Grant & Downs (1976) 135 CLR 13

Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27

Wardrope & Dunne [1996] 1 Qd R 224 at 226

X Corporation Pty Ltd & Jess and Anor [2016] FamCACF 43

Division: Division 2 Family Law
Number of paragraphs: 33
Date of hearing: 26 May 2025
Place: Hobart
Counsel for the Applicant: Mr Trezise
Solicitor for the Applicant: PWB Lawyers
Counsel for the Respondent: Mr Sansom
Solicitor for the Respondent: Ogilvie Jennings
Solicitor for the Objector: Ms Bloomfield, WMM Law

ORDERS

HBC 764 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS NEWSOME

Applicant

AND:

MR NEWSOME

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

5 JUNE 2025

THE COURT ORDERS THAT:

1.WMM Law has leave to redact the documents produced by them in response to a subpoena issued on 27 March 2025 to remove or obscure reference to communications, instructions and advice about the Respondent Husband’s will and enduring guardianship.

2.WMM Law produce the redacted documents referenced in Order 1 of these Orders to the Hobart Registry of the Court within 7 days of the date of these Orders.

3.All parties and their representatives have leave to inspect and copy the documents referenced in Order 2 of these Orders once they have been produced in accordance with these Orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by…

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Details
Case
[2025] FedCFamC2F 747
Decision Date

CaseChat Overview and Summary

Ms Newsome applied for orders in relation to a subpoena issued to Mr Newsome on 27 March 2025, seeking documents relating to a discretionary trust. The subpoena was issued in the context of their ongoing family law proceedings. Mr Newsome objected to the subpoena on several grounds, including that it was oppressive, a fishing expedition, and that it sought documents protected by legal professional privilege. WMM Law, the law firm that produced the documents in response to the subpoena, also sought leave to redact certain information from the documents.

The court was required to decide whether the subpoena was oppressive or amounted to a fishing expedition, whether the documents were subject to legal professional privilege, and whether such privilege had been waived. The court considered the nature of the trust and the documents produced in response to the subpoena, including whether they contained communications, instructions, and advice about Mr Newsome’s will and enduring guardianship. The court also considered whether legal professional privilege had been waived by conduct.

The court found that the subpoena was not oppressive or a fishing expedition, as it was reasonably directed to documents relevant to the proceedings. The court also found that the documents produced were subject to legal professional privilege, but that this privilege had been waived by conduct. Specifically, the court found that WMM Law had waived legal professional privilege by including the documents in a document production statement and by disclosing the existence of the documents to the applicant’s solicitors. The court therefore granted leave for WMM Law to redact certain information from the documents and ordered that the redacted documents be produced to the court within 7 days. The court also granted leave for all parties and their representatives to inspect and copy the redacted documents once they had been produced.

The court’s orders reflect its determination that the subpoena was not oppressive or a fishing expedition, and that legal professional privilege had been waived by conduct. The orders also provide for the redaction of certain information from the documents produced in response to the subpoena and for the production of the redacted documents to the court.

Orders

Orders of the court

HBC 764 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS NEWSOME

Applicant

AND:

MR NEWSOME

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

5 JUNE 2025

THE COURT ORDERS THAT:

1. WMM Law has leave to redact the documents produced by them in response to a subpoena issued on 27 March 2025 to remove or obscure reference to communications, instructions and advice about the Respondent Husband’s will and enduring guardianship.

2. WMM Law produce the redacted documents referenced in Order 1 of these Orders to the Hobart Registry of the Court within 7 days of the date of these Orders.

3. All parties and their representatives have leave to inspect and copy the documents referenced in Order 2 of these Orders once they have been produced in accordance with these Orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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