FAMILY LAW – PRACTICE AND PROCEDURE – discovery – legal professional privilege – file of the husband’s solicitors produced under subpoena and inspected by the wife’s legal representatives – access to the subpoenaed documents revoked later that day – whether privilege attached to the solicitor’s file – whether there was an implied waiver of privilege arising out of specific portions of the husband’s affidavit as relied upon by the wife – whether wife’s legal representatives should be restrained from continuing to act on her behalf – whether wife’s legal representatives would be subject to an order not to disseminate the contents of the documents to those who may subsequently represent the wife
The husband make available for inspection by the wife’s legal representatives those documents contained in the file produced to the Court by the husband’s former lawyers, Meyer Pigdon, which fit the following description:
(a)All documents noting instructions from the husband prior to the advice being given as specified in paragraph 6 of the husband’s affidavit sworn 10 September…
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
PASCOT & PASCOT [2010] FamCA 644
Case
[2010] FamCA 644
Decision Date
CaseChat Overview and Summary
In the matter of *Pascot & Pascot*, the husband sought to maintain legal professional privilege over certain documents, while the wife sought their disclosure. The dispute concerned the extent to which the husband had waived privilege by disclosing the substance of legal advice he had received. The case was heard by Le Poer Trench J.
The central legal issue before the court was whether the husband's prior conduct, specifically the disclosure of the substance and effect of legal advice received from his former solicitors, constituted a waiver of legal professional privilege over related documents. The court was required to determine the legal principles governing waiver of privilege in such circumstances and apply them to the facts presented.
Le Poer Trench J applied the reasoning of Tamberlin J in a previous matter, which held that disclosing the conclusion or recommended course of action within legal advice, even without revealing the underlying reasoning, can impute a waiver of privilege. The court found that the husband had disclosed the substance of the advice, including the interpretation he had been advised was correct, thereby waiving privilege over the relevant parts of that advice. Consequently, the court ordered the husband to make available for inspection documents from his former lawyers' file that noted instructions prior to the advice being given and documents containing the advice itself, or parts thereof, to proceed to obtain agreement with the wife for a financial agreement. The court also made provision for further inspection by the judge if a dispute arose regarding the completeness of the disclosure.
Orders
Orders of the court
1.
The husband make available for inspection by the wife’s legal representatives those documents contained in the file produced to the Court by the husband’s former lawyers, Meyer Pigdon, which fit the following description:
(a) All documents noting instructions from the husband prior to the advice being given as specified in paragraph 6 of the husband’s affidavit sworn 10 September 2008.
(b) All documents containing the advice, or any part thereof, to the husband, by his solicitor, to proceed to obtain agreement with the wife to enter into a financial agreement.
2.
In the circumstances of this case, should the wife’s legal representative notify the husband’s legal representative that it is asserted that not all of the documents required to be produced for inspection pursuant to Order 1 hereof have been provided then the husband’s solicitors are to provide the file to Justice Le Poer Trench for the purpose of inspection and determination as to whether any further documents on the file need to be provided under Order 1 hereof.
3.
I stand over for further hearing the determination of the husband’s application that the solicitor for the wife and her counsel be restrained from acting further for her and ancillary orders consequent upon an injunction of that nature being granted.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Tamberlin J (at paragraph 6) held that the disclosure expressed the substance of the advice and considered that (emphasis added):“…In my view, it would be inconsistent and unfair, having disclosed and used the substance of the advice in this way, to now seek to maintain privilege in respect of the relevant parts of that advice which pertain to the expressed conclusion. It may perhaps have been different if it had been simply asserted that the client has taken legal advice and that the position which was adopted having considered the advice, is that certain action will be taken or not taken. In those circumstances, the substance of the advice is not disclosed but merely the fact that there was some advice and that it was considered. However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion. This is the situation in this case.” I find that the reasoning of Tamberlin J, as set out in the following paragraphs, offers further guidance for present purposes (emphasis added):12. While it is true that questions of fact and degree may be involved in determining whether the conduct or circumstances are such that waiver can be imputed, nevertheless, there is an underlying principle of law to be resolved as to what in law may or will constitute a waiver. In these circumstances, I do not consider that it can be said to be merely a question of fact and degree so that an appellate court cannot re-examine the matter and come to a different conclusion. In this case, the “detail” of the advice has not been disclosed, but there is no doubt that the substance of the conduct has been stated. Hence, not only is the “legal stance” or “position” disclosed but also the interpretation which has been advised as correct. The question whether this is a waiver necessarily involves the consideration and application of legal principles, as the appellate authorities on waiver demonstrate.13. Various expressions are used in the formulation of principles relating to waiver of legal professional privilege, such as references to “the substance”,“effect” or “content” of the advice. The weight of the authorities, in my view, supports the conclusion that the disclosure of the conclusion reached in or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed. By way of illustration, if there is a disclosure that a client has been advised that interpretation “A” is preferable to interpretation “B” of a legislative provision, then even if there is no disclosure of the reasoning leading to that conclusion, the reasoning and content of the advice may be waived, including the factual premises and circumstances leading to that conclusion. The issue of recording the receipt of legal advice and disclosing the substance of that advice was considered by Young J in AWB Ltd v Cole and Another (2006) 232 ALR 743. His Honour said (at 136):“In my view, the distinction between a mere reference to advice having been obtained, and a reference that discloses the content or substance of the advice, has not been eliminated by the High Court’s restatement of the relevant principles as to waiver in Mann v Carnell (1999) 201 CLR 1… .”