NISBET and NICHOLSON

[2021] FCWA 67

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: NISBET and NICHOLSON [2021] FCWA 67

CORAM: SUTHERLAND CJ

HEARD: 7 APRIL 2021

DELIVERED : 16 APRIL 2021

FILE NO/S: PTW 746 of 2018

BETWEEN: MS NISBET

Applicant

AND

MR NICHOLSON

Respondent

Catchwords:

PRACTICE AND PROCEDURE - Disclosure - Waiver of legal professional privilege - Whether legal advice a factor influencing state of mind

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Spashett
Respondent	:	Mr Jones

Solicitors:

Applicant	:	Platinum Legal
Respondent	:	Joss Legal

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

Australian Agricultural Company Ltd v AMP Lift Ltd [2006] FCA 371

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

Ding & Ding (2019) FLC 93-893

Mann v Carnell (1999) 201 CLR 1

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nisbet and Nicholson has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1The trial in these long-running parenting proceedings is listed to commence on 5 July 2021 for five days. In March 2021, the father filed an interim application seeking a number of interim parenting orders, including for the family to participate in a four-day intensive family therapy program with [Dr A] (a program which the mother in fact proposed in early 2020, via her former solicitors, [Law Firm A]). The father’s proposal was put on the basis that the trial in July 2021 would proceed as listed.

2In response, the mother sought orders that the family participate in a (non-intensive) family therapy process with a therapist as agreed, and on the basis that the upcoming trial be vacated and the proceedings transferred to [the City A] Registry of the Family Court of Australia. The father deposed to his concerns about the mother’s bona fides in proposing family therapy, in circumstances where the mother’s solicitor informed the Court in January 2021 that the mother was running a no contact case and was not supportive of family therapy.[1] The father also deposed to the mother reneging on Dr A’s program in 2020.[2]

[1] Father’s affidavit filed 5 March 2021, [12] and [15].

[2] Father’s affidavit filed 5 March 2021, [9] and [10].

3In support of the interim orders sought by her, the mother deposed to the following (in her affidavit filed 5 March 2021, at paragraph [4]):

I understand [the father’s] scepticism raised in his affidavit filed on 5 March 2021 about my proposal to proceed to family therapy. I accept that my previous lawyers, [Law Firm A] wrote to [Dr A] and [the father’s] lawyer regarding the intensive therapy program. I was directed by my lawyer that I had to agree to the appointment of [Dr A]. I was told by my layer (sic) that if I did not accept the appointment of [Dr A] that I would “lose” the Children, that [the father] would “get full custody”, and that there was no other way forward at that point other than to accept the appointment of [Dr A] or “lose” the Children. I was not happy with that advice, as I felt forced into that position, and that there was no other way. I raised the issues of concern that I had about [Dr A] with my former lawyer, being the same as I depose below, but my former lawyer dismissed my consent (sic), and said that I had to go with [Dr A].

4I heard the parties’ respective interim applications[3] on 7 April 2021. Both parties were represented by counsel. Ultimately, those applications were dismissed by consent, save for one issue: whether the mother, by paragraph 4 of her affidavit as set out above, expressly or impliedly waived legal professional privilege over communications with her former solicitor about Dr A’s program.

[3] By the time of the hearing, each party relied on the following applications and affidavit material: the father relied on his Amended Form 2 Application in a Case, and his affidavits filed 5 March 2021 and 1 April 2021 respectively; the mother relied on her Form 2A Response filed 19 March 2021, and her affidavit filed 19 March 2021.

5In relation to that issue, the father sought the following order in his Amended Form 2 Application:

28.The [mother] sign all documents and do all such acts and things necessary to provide the [father’s] solicitor with a signed authority to facilitate her former solicitor providing the [father’s] solicitor with information about the engagement of Dr A.

6For ease, I will refer to the documents sought by the father as the “Target Documents”.

APPLICABLE LEGAL PRINCIPLES

7In Mann v Carnell (1999) 201 CLR 1, the plurality of the High Court explained wavier of privilege at common law in the following terms:

[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 privilege. 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 communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyers evidence as to advice given to the client will be received.

[29]Waiver may be expressed 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 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.

(emphasis added) (citations omitted)

8It is well established that a person may waive legal professional privilege by putting their state of mind in issue in proceedings. As the Full Court of the Federal Court of Australia explained in Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 (at [67]), whilst privilege would not be waived in circumstances where a person merely discloses the fact they have received legal advice, a waiver may potentially be effected where that person:

…puts the contents of the legal advice in issue by specifically relying on the contents of that advice (and not merely the fact of the advice) to vindicate [their claimed state of mind].

9The Full Court went on to say (at [68]):

The question is whether, by his particulars, the Commissioner made an assertion as part of his case that puts the contents of the privileged scheduled documents in issue, or necessarily lays them open to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege.

10In Australian Agricultural Company Ltd v AMP Lift Ltd [2006] FCA 371 (at [34]), Cowdroy J summarised the principle in this way:

In my opinion, in order to waive privilege a party must assert a belief which is likely to have been, or is explicitly said to have been, materially dependent upon legal advice given to that party. In that case the proof or otherwise of belief is dependent upon the legal advice and accordingly privilege is waived. This is the position in cases where the dispute relates to a party’s understanding of its legal position at a given point in time, such as Thomason, Rio Tinto, Ampolex and Fort Dodge.

THE PARTIES’ SUBMISSIONS

11The mother’s counsel submitted that paragraph 4 of the mother’s affidavit did not effect a waiver over the Target Documents, because: (1) the objective purpose of the disclosure was to explain why the mother’s position about Dr A’s program had changed; (2) there was no intent to disclose the nature and content of the specific legal advice the mother received about Dr A’s program and issues related thereto; and (3) the disclosure was not made in furtherance of the mother’s substantive application. In the event the Court determined that the mother had waived privilege, the mother’s counsel submitted that it would be appropriate for the mother (or her solicitor) to first inspect the Target Documents, to ensure that information still protected by legal professional privilege is redacted / removed.

12The mother’s counsel also submitted that he was instructed that no documents exist, because the advice to which the mother referred was given by her former solicitor over the telephone. That submission was effectively evidence from the bar table, and it was not suggested that the mother had inspected her former solicitor’s file so as to provide a proper basis for her instructions in that regard. I consider it likely that the mother’s former solicitors would have, at the very least, recorded their interaction with the mother by telephone in a file note or similar document, particularly in circumstances where, as the mother alleged, the legal advice provided met with the mother’s disapproval.

13In reply, the father’s counsel simply submitted that paragraph 4 clearly effected a waiver. The father’s counsel further submitted that the family’s participation in Dr A’s program will likely be an issue at trial, and that paragraph 4 of the mother’s affidavit may also affect the mother’s credit, subject to what the Target Documents reveal.

The father’s counsel submitted that the form of order sought (that is, an authority directed to the mother’s former solicitors to provide the Target Documents) was the most expeditious way to deal with the issue.

DISCUSSION AND CONCLUSION

14In some cases, it will be necessary for the Court to inspect the document(s) over which privilege is claimed, to determine whether the person asserting the privilege has acted in a manner inconsistent with its maintenance. Such was the case in Ding & Ding (2019) FLC 93‑893, where the husband, at trial, put his state of mind in issue by giving evidence under cross-examination that he had not, prior to transferring various property, considered or had his attention drawn to a future claim of property settlement by the wife. The wife had in her possession a letter which she asserted proved the contrary, and over which the husband claimed legal professional privilege. The Full Court held that it was necessary for the court below to have inspected the letter, to determine whether the husband’s evidence was, in fact, inconsistent with maintenance of the privilege. Ding & Ding would appear to be a special category of case, where the person asserting the privilege is also seeking to prove a negative; namely that they did not receive legal advice in relation to a particular topic or subject. The facts of this case are clearly distinguishable, and I am satisfied there is no need for the Court in this case to first inspect the Target Documents to determine whether privilege has indeed been waived.

15By paragraph 4 of her affidavit, the mother put her state of mind squarely in issue, namely that the mother always held concerns about Dr A’s program, and only agreed to the program because she was strong-armed by her solicitor. The mother gave that evidence to buttress against father’s case that she lacked bona fides in her renewed proposal for family therapy.

16The mother put her state of mind in issue by reference to the content of the legal advice she allegedly received, and the instructions she allegedly gave. The (alleged) advice was that the mother would “lose” the children if she did not agree to Dr A’s program. The (alleged) instructions were the concerns the mother said she raised with her solicitor about that program, which were dismissed. It was in that context that the mother said she felt as though she had no other choice but to agree to Dr A’s program.

17The mother has, in putting her state of mind in issue with reference to the content of legal advice received (and instructions provided), acted in a manner inconsistent with the maintenance of privilege over those communications. It follows that I am satisfied that her conduct has effected a waiver. The father is entitled to inspect the Target Documents so he can test whether the allegations made by the mother in paragraph 4 of her affidavit are true.

18Contrary to the submission by the mother’s counsel, the issue of waiver does not turn on whether one or both parties contend for the family’s participation in Dr A’s program at trial. The mother put her state of mind in issue in the context of interim proceedings in this court, and in so doing waived privilege. I accept the submission of the father’s counsel that even if Dr A’s program is not an issue agitated at trial, the issue of the mother’s credit remains. I would also add that the mother’s attitude towards therapy generally (as may be illuminated by the Target Documents) is very likely to be a relevant issue at trial.

19In terms of the specific order sought by the father, I am not satisfied that it is appropriate. Absent a consent-based arrangement, the proper way for a solicitor’s file (or part thereof) to be made available for inspection is for a subpoena to issue for its production. That process provides the mother’s former solicitors with the opportunity to: (1) collate the Target Documents with reference to the terms of the subpoena, and provide them in a controlled manner to the Court; (2) properly consider their position with respect to any objection they may wish to make on behalf of the mother against inspection (including, for example, in circumstances where material that remains privileged is mixed with material over which privilege has been waived); and (3) claim their reasonable costs for complying with the subpoena.

20I am satisfied that it is appropriate for the mother’s solicitor to first inspect the documents produced by her former solicitors, to identify whether any material contained therein remains privileged and, if so, to redact or remove that material as appropriate. Given the orders I propose to make differ to those sought by the parties, I intend to provide the parties with the opportunity to make further, brief submissions.

21I intend to make the following orders:

ORDERS

1.The Respondent, [MR NICHOLSON], have leave to issue a subpoena to [Law Firm A] (being the former solicitors of the Applicant, [MS NISBET]) for production of only the following category of documents:

All documents relating to proceeding PTW [ XXX / XXXX] that relate (whether in part or in whole) specifically [to] the issue of the Applicant’s involvement in the four-day program offered by [Dr A], including documents evidencing instructions provided by, and legal advice given to, the Applicant.

2.The Respondent shall provide a copy of these Orders, together with the written reasons for decision, to [Law Firm A] at the same time as serving the subpoena.

3.Within 7 days of production of documents by [Law Firm A] pursuant to subpoena, the Applicant’s solicitor have the first opportunity to inspect the documents in the presence and under the supervision of the Chief Judge’s Legal Associate for the purposes of:

(a) Redacting any portion of the documents that do not relate to the issue specified in paragraph 1 above;

(b)Removing any documents that do not relate to the issue specified in paragraph 1 above;

(c)Preparing a list of the documents so redacted or removed, including the date of each document (if applicable) and a description thereof, with such list to be filed and served on the Respondent; and

(d)Placing a copy of the original, un-redacted document(s) and/or any documents removed into a sealed envelope, to be stored with the Court’s Subpoena Office and not opened until further order of this Court.

4.Forthwith upon compliance with the preceding paragraph, the Applicant do notify the Respondent, and the Respondent thereafter be permitted to inspect the documents, except for those contained in the sealed envelope.

5.The Respondent have liberty to apply to inspect the documents in the sealed envelope.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

16 APRIL 2021