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 theEvidence 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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.