Pickford & Pickford
[2023] FedCFamC1F 1087
•15 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pickford & Pickford [2023] FedCFamC1F 1087
File number(s): SYC 3365 of 2019 Judgment of: ALTOBELLI J Date of judgment: 15 December 2023 Catchwords: FAMILY LAW – EVIDENCE – Waiver of privilege – Where the husband claims the wife waived privilege by acting inconsistent with the maintenance of that privilege – Where the wife claims there was no voluntary disclosure of legal advice – The Court finds that the wife’s disclosure was an inadvertent and unintentional mistake – The claim that privilege has been waived is dismissed. Legislation: Evidence Act 1995 (Cth) ss 118, 122 Cases cited: Commonwealth of Australia v Verwayen (1990) 170 CLR 394; [1990] HCA 39
Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305; [1920] HCA 64
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391; [1997] FCA 545
Morris & Morris (No 3) [2023] FedCFamC1F 927
Division: Division 1 First Instance Number of paragraphs: 16 Date of last submission/s: 17 November 2023 Date of hearing: 16 November 2023 Place: In chambers Counsel for the Applicant: Ms Kaiti Solicitor for the Applicant: Thornton and King Pty Ltd Counsel for the Respondent: Mr Sansom SC Solicitor for the Respondent: ATW Family Law Solicitor for the Independent Children's Lawyer: Mr MacDiarmid ORDERS
SYC 3365 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PICKFORD
Applicant
AND: MR PICKFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Respondent Husband’s claim that the Applicant Wife waived legal privilege is dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pickford & Pickford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain why the Court has not accepted the submissions made on behalf of the respondent husband (“the husband”) that the applicant wife (“the wife”) had, as a result of matters deposed to in her affidavit, lost the privilege otherwise available to her under s 118 of the EvidenceAct 1995 (Cth) (“the Evidence Act”) as a result of s 122 of the Evidence Act.
BACKGROUND
This matter is part-heard and was heard before me on 13–16 February 2023 and 13‑16 November 2023, with the final two days to be heard on 8–9 January 2024. In substantive proceedings between the parties in relation to both parenting and alteration of property interests the wife deposed at paragraphs 29–31 of her affidavit filed on 3 November 2023, as follows:
29. I have been advised that:
a. I have a strong prima facie case and good prospects of obtaining a final property settlement of at least 50% of the non-superannuation net asset pool;
b. At the conclusion of the interim hearing in respect of this application for interim costs, I will have incurred $4,000 in lawyers' costs and $2,000 for barristers' fees;
c. that the amount I will ultimately receive by way of property settlement will be more than sufficient to cover the amount now sought by me for interim costs.
30. On 10 December 2021 I entered into a costs agreement with my lawyers, Thornton + King Lawyers.
31. I am advised by my barrister that she requires payment upfront, and that the prepared to "carry" my costs and outlays in these proceedings.
MATERIAL BEFORE THE COURT
The parties rely on material tendered in the substantive proceedings, as well as further written submissions and supporting documents.
In support of his case, the husband relies upon the following material:
(a)Oral submissions made on 16 November 2023;
(b)Written submissions received 17 November 2023;
(c)The wife’s affidavit filed 1 November 2023 (Exhibit R15);
(d)The wife’s draft affidavit drafted on or around 24 October 2023 (Exhibit R16);
(e)The wife’s affidavit filed 14 November 2023 (Exhibit R17); and
(f)Material contained in a document entitled “Supporting Documents” received 17 November 2023 including:
(i)A letter from ATW Family Law to Thornton + King dated 7 November 2023;
(ii)A letter in response from Thornton & King to ATW Family Law dated 7 November 2023;
(iii)A letter in reply from ATW Family Law to Thornton + King dated 7 November 2023;
(iv)An email from Thornton + King to ATW Family Law dated 10 November 2023;
(v)An email in response from ATW Family Law to Thornton + King dated 10 November 2023;
(vi)A letter from ATW Family Law to Thornton + King dated 10 November 2023; and
(vii)A letter from ATW Family Law to Thornton + King dated 14 November 2023 (Exhibit R14).
In support of her case, the wife relies upon the following material:
(a)Oral submissions made on 16 November 2023;
(b)Written submissions received 17 November 2023;
(c)Her affidavit filed 14 November 2023 (Exhibit R17); and
(d)The same letters outline above at [3] (f)(i)–(iii).
APPLICABLE LAW
The applicable law regarding waiver of privilege is set out at ss 118 and 122 of the Evidence Act, which is as follows:
118 Legal advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a)a confidential communication made between the client and a lawyer; or
(b)a confidential communication made between 2 or more lawyers acting for the client; or
(c)the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
122 Loss of client legal privilege: consent and related matters
(1)This Division does not prevent the adducing of evidence given with the consent of the client or party concerned.
(2)Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3)Without limiting subsection (2), a client or party is taken to have so acted if:
(a)the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b)the substance of the evidence has been disclosed with the express or implied consent of the client or party.
(4)The reference in paragraph (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
(5)A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because:
(a) the substance of the evidence has been disclosed:
(i)in the course of making a confidential communication or preparing a confidential document; or
(ii)as a result of duress or deception; or
(iii)under compulsion of law; or
(iv)if the client or party is a body established by, or a person holding an office under, an Australian law—to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held; or
(b)of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person; or
(c)of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
(6)This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).
The Full Court in Morris & Morris (No 3) [2023] FedCFamC1F 927 has recently summarised the relevant law at [33]–[35]:
33I am satisfied, accepting Mr CC’s evidence, that the dominant purpose of the communications between Mr CC and the husband was for the purposes of giving legal advice and that at the time the advice was given, it contemplated that there was the possibility of litigation. As much is obvious from the paragraphs of his affidavit I have referred to earlier and the summary of his evidence I have addressed above. I am also satisfied for the same reasons that the advice prepared by Mr DD falls into the same category.
34I am not satisfied that there is any ambiguity as asserted by the wife’s senior counsel. The dominant purpose is made clear by the terms of Mr CC’s affidavit. As much is conceded by the wife’s written submissions that contended “[Mr CC’s] evidence puts beyond doubt that the husband relied on advice from [Mr CC] and [Mr DD] prior to taking that step” (at paragraph 8). That step being the transfer of the shares.
35I am comfortably satisfied that the documents the subject of the subpoena are covered by both advice and litigation privilege.
The primary judge identified, correctly with respect, the applicable legal principles by reference to the authorities, including the two leading High Court authorities of Mann v Carnell (1999) 201 CLR 1 (“Mann v Carnell”), and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 (“Expense Reduction”).
The High Court described the applicable principles in Mann v Carnell as follows:
28.... It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. …
29.Waiver may be express or implied. … What brings about the waiver is the 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.
In Expense Reduction, the High Court described the applicable principles as follows:
30.According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.
31.In Craine v Colonial Mutual Fire Insurance Co Ltd, it was explained that “‘[w]aiver’ is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions … It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has ‘approbated’ so as to prevent him from ‘reprobating’”. In Mann v Carnell, it was said that it is considerations of fairness which inform the court’s view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though “not some overriding principle of fairness operating at large”.
SUBMISSIONS SUMMARISED
In short, the husband contended that the wife had, by her sworn evidence, waived privilege in relation to the advice to which she deposed. She has done so by acting in a way that is inconsistent with the maintenance of that privilege. The evidence that the wife had herself filed in the proceedings renders implausible the proposition she advanced that the disclosure was inadvertent, and hence no waiver was possible.
In short, the wife contended that she signed the affidavit in question on 3 November 2023 believing it to be an amended version of the affidavit that she had been previously provided, and which specifically addressed, by way of deletion, the issue of the advice she had received. Inherent in the wife’s case was an acceptance that she had not read the document carefully before signing. Nonetheless, in the circumstances, it was not a voluntary disclosure, and hence the privilege had not been waived.
DISCUSSION
When the totality of the evidence put before the Court is examined, the Court is satisfied that s 122(3) of the Evidence Act does not apply, that is that the wife did not knowingly and voluntarily, expressly or impliedly, waive the privilege that attached to the advice that she referred to. It was not an intentional act with that knowledge: Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305, 326; Commonwealth of Australia v Verwayen (1990) 170 CLR 394. It was an inadvertent and unintentional mistake, and the wife’s solicitors acted quickly, and reasonably, to protect confidentiality. The Court also accepts that the mistake must have been obvious and apparent to the husband, and on that basis, and in the circumstances of this case, the privilege should not be lost: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 405 per Goldberg J.
The Court is, in any event, not satisfied that the production of the advice and supporting materials in question would have such probative value that it would justify the extraordinary private and public cost and inconvenience consequent upon the inevitable delay of the conclusion of a hearing that is already in day eight and has two more days of hearing listed in January 2024.
DETERMINATION
The husband’s claim that privilege has been waived by the wife is dismissed.
ORDERS
The Court dismisses the claim by the husband that the wife has, as a result of matters deposed to in her affidavit made 1 November 2023, filed 3 November 2023, lost the privilege otherwise available to her under s 118 of the Evidence Act as a result of s 122 of the said Act.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 15 December 2023
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