Osferatu and Osferatu (No 2)

Case [2013] FamCA 644


FAMILY COURT OF AUSTRALIA

OSFERATU & OSFERATU (NO 2) [2013] FamCA 644
FAMILY LAW – PRACTICE AND PROCEDURE – EVIDENCE – CLIENT LEGAL PRIVILEGE – Where in proceedings under section 79 of the Family Law Act 1975 (Cth) the wife objected to portions of a witness affidavit filed in the husband’s case on the basis of client legal privilege (legal professional privilege) – Where the wife submitted that certain conversations deposed to in the affidavit were confidential communications between the wife and the deponent for the dominant purpose of the deponent providing legal advice to the wife – Consideration of sections 117 and 118 of the Evidence Act 1995 (Cth) – Consideration of the requirement to find that a relationship of “lawyer” and “client” existed between the deponent and the wife – Consideration of the “confidential communication” requirement – Consideration of what constitutes “legal advice” and whether that was the “dominant purpose” of the confidential communications – Consideration of the burden of proof required to establish a claim of client legal privilege – Where the wife’s claim of client legal privilege was not satisfied – Where the wife’s objections were dismissed

Legislation cited:

Acts Interpretation Act 1901 (Cth)

Evidence Act 1995 (Cth)
Evidence Act 1995 (NSW)
Evidence Amendment Act 2008 (Cth)
Family Law Act 1975 (Cth)
Legal Profession Act 2004 (NSW)

Cases considered:
Apple Computer Australia Property. Ltd v Wily [2002] NSWSC 855
AWB Ltd v Cole (No. 5) (2006) 155 FCR 30
AWB v Cole & Anor (2006) 152 FCR 382
Baker v Campbell (1983) 153 CLR 52
Carnell v Mann (1998) 89 FCR 247
Commonwealth & Anor v Vance [2005] ACTCA 35
Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49
Hawksford v Hawksford [2008] NSWSC 31
Kennedy v Wallace (2004) 142 FCR 185
Maxwell v Chittick (unreported, NSWCA, 23 August 1994)
New South Wales v Jackson [2007] NSWCA 279
Rickard Constructions Pty Ltd v Rickard Hailes Moretti Pty Ltd [2006] NSWSC 234
Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47
Tabcorp Holdings Ltd v Victoria [2013] VSC 302

Other material considered:
Parliament of the Commonwealth of Australia (House of Representatives), Explanatory Memorandum to the Evidence Amendment Bill 2008
Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission (2005) Uniform Evidence Law (ALRC 102; NSWLRC 112 and VLRC FR)

APPLICANT: Mr Osferatu
RESPONDENT: Ms Osferatu
INDEPENDENT CHILDREN’S LAWYER: Mr Glen Thompson
FILE NUMBER: SYC 2318 of 2011
DATE DELIVERED: 22 August 2013
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Le Poer Trench J
HEARING DATE: 22 July – 9 August 2013

REPRESENTATION  

COUNSEL FOR THE APPLICANT: Mr Richardson SC with Mr Kearney SC
SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Kirk QC with Mr Campton
SOLICITOR FOR THE RESPONDENT: Watts McCray
COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr…

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Details
AGLC
Osferatu and Osferatu (No 2) [2013] FamCA 644
Case
[2013] FamCA 644
Decision Date

CaseChat Overview and Summary

In the matter of *Osferatu and Osferatu (No 2)*, Le Poer Trench J of the Family Court of Australia considered an objection raised by the wife concerning paragraphs 4 to 11 of an affidavit sworn by Ms E on 17 July 2013. The wife claimed that these paragraphs were protected by legal professional privilege.

The central legal issue before the Court was whether the content of the specified paragraphs within Ms E's affidavit was indeed subject to legal professional privilege, thereby rendering it inadmissible. The Court was required to determine the validity of the wife's claim of privilege in relation to the evidence presented.

Le Poer Trench J overruled the wife's objection at that time. The Court granted the wife leave to re-raise the objection at a later stage of the hearing, contingent upon the admission of further evidence that might be relevant to the subject of the privilege claim. This approach allowed for a potential reconsideration of the privilege claim as the proceedings developed.

Orders

Orders of the court

1.

The wife’s objection to paragraphs 4 to 11 of the affidavit of Ms E filed on 17 July 2013 based upon a claim of legal professional privilege are, at this time, overruled. The wife has leave to press the objection further at a later stage of the hearing should further evidence be admitted which touches on the subject objection.

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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