Pickford & Pickford - [2023] FedCFamC1F 1087

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…

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.

Continue reading Pickford & Pickford

Details

AGLC: Pickford & Pickford [2023] FedCFamC1F 1087
Case: [2023] FedCFamC1F 1087
Decision Date: 15 December 2023

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Pickford & Pickford was heard as part of ongoing substantive proceedings relating to parenting and property interests between Ms Pickford and Mr Pickford. The husband argued that the wife had waived the privilege available under section 118 of the Evidence Act 1995 (Cth) by disclosing information that was otherwise protected by legal professional privilege. The wife countered that any disclosure was inadvertent and unintentional, and thus did not constitute a waiver of privilege.

The court was required to determine whether the wife's statements in her affidavit constituted a waiver of the legal professional privilege, which could allow the husband to challenge the admissibility of certain evidence in the substantive proceedings. The court considered the evidence presented by both parties, including the wife’s affidavits, correspondence between her legal representatives, and the written submissions made by both parties. The court had to weigh the husband’s argument that the wife had acted inconsistently with maintaining privilege against the wife’s contention that her disclosure was a mistake.

The court found that the wife’s disclosure in her affidavit was an inadvertent and unintentional mistake, and did not constitute a voluntary disclosure of legal advice. The court emphasised that the privilege was not waived unless there was an intention to disclose the privileged information. Given that the wife’s statements were made without the intent to waive privilege, the court dismissed the husband’s claim that the privilege had been waived.

The court ordered that the husband's claim that the wife had waived legal privilege was dismissed. This decision ensures that the wife's communications with her legal representatives remain protected by legal professional privilege in the substantive proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

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