Pitt and Pitt (No 3)

[2009] FamCA 862

FAMILY COURT OF AUSTRALIA

PITT & PITT (NO. 3) [2009] FamCA 862

FAMILY LAW – PRIVILEGE – Production of documents on subpoena – claim of lawyer-client privilege – dominant purpose rule – claim of privilege upheld

Evidence Act 1995 (Cth) ss 117(1), 118, 133

APPLICANT: Ms Pitt

RESPONDENT: Mr Pitt

OBJECTING PARTY: G Limited

FILE NUMBER:  SYC 2905 of 2007

DATE DELIVERED:  31 August 2009

PLACE DELIVERED: SYDNEY

PLACE HEARD:  SYDNEY

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 31 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Slade Manwaring Solicitors

COUNSEL FOR THE RESPONDENT: P. Livingstone

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

COUNSEL FOR THE OBJECTING PARTY: B. Richards

SOLICITOR FOR THE OBJECTING PARTY: DibbsBarker

Orders

1. That the email communications being email from D. Vuaran of DibbsBarker Solicitors to Mr I, G Limited, dated 22 June 2009, and email between the same persons dated 30 June 2009 are subject to privilege and may not be inspected by the Husband or the Wife, or their respective legal representatives.

2. That consequently, these documents may be released from the subpoena and returned to counsel for G Limited.

3. That the Husband pay the costs of G Limited, limited to the issue of the claim of privilege made with respect to certain documents called upon to be produced pursuant to the subpoena to G Limited issued 22 July 2009 on a solicitor/client basis as assessed or agreed upon or failing agreement as taxed.   

IT IS NOTED that publication of this judgment under the pseudonym Pitt & Pitt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2905 of 2007

MS PITT

Applicant

And

MR PITT

Respondent

REASONS FOR JUDGMENT

Introduction

1. G Limited, by its legal representatives, have appeared before me in order to agitate a claim of privilege in relation to certain documents described in paragraphs 3.1 and 3.2 of the written submissions made on behalf of G Limited dated 20 August 2009.  The issue of privilege is contested by the Husband.  The relevant subpoena is that issued on 22 July 2009.  I have received and read the written submissions on behalf of G Limited and the Husband.

2. Section 117(1) of the Evidence Act 1995 (Cth) provides definitions of a “confidential document”, a “client” and a “lawyer”. None of those matters are in issue. The elements set forth in s.118 are relied upon. It is not conceded that the dominant purpose element of that section has been established. An affidavit has been read, being the affidavit of Dennis Neville Vuaran solicitor sworn

   
   

   27 August 2009 in his capacity as the solicitor for G Limited.  He is not required for cross-examination. 

3. I was invited by counsel for the Husband to inspect the relevant documents and in that regard, exercise my discretion to do so provided in s 133 of the Evidence Act.  Whilst it was submitted that I should not carry out such inspection, counsel for the Husband conceded that there was no prejudice to his client in the event of my inspection of the relevant documents.  I proceeded to inspect these documents.  No further submissions were made.

4. The burden of proof is on G Limited for the purpose of establishing the question of fact to be proved on the balance of probabilities.  A mere assertion of a claim of privilege is insufficient. 

Conclusion

1. I have concluded that the claim of privilege has been established.  My reasons for doing so are as follows.

2. I have accepted the evidence of the solicitor for G Limited.  That affidavit evidence is sufficiently particularised.  In addition my inspection of the relevant material demonstrates to me that it is consistent with the evidence contained in that affidavit.  Accordingly, I find that the relevant material does provide legal advice and that is the dominant purpose revealed in the documents to which I have referred.

3. Accordingly I uphold the claim of privilege.  As a consequence, the email communications being the email from D. Vuaran of DibbsBarker Solicitors to Mr I of G Limited dated 22 June 2009 and the email between the same persons dated 30 June 2009 are subject to privilege and may not be inspected by the Husband or the Wife, or their respective legal representatives. 

4. Consequently these documents may be released from the subpoena and returned to counsel for G Limited.

Costs

1. G Limited seek an order for costs estimated to be $10,100.00 inclusive of counsel’s fees.  I have heard submissions in relation to whether that quantum was reasonable in all the circumstances, particularly by reference to, amongst other things, the affidavit of Penelope Anne Hobart sworn 31 August 2009.  Counsel for G Limited has submitted that the costs sought are on a solicitor/client basis.  That appears to be correct, but the reality is that it appears more in the nature of indemnity costs.  It may be that, in the circumstances of this matter, it is a distinction without a difference.

2. I have determined that there will be an order for costs in favour of G Limited on a solicitor/client basis limited only to the issue of the objection to the production and inspection of documents pursuant to r.15.26 (b) and (c), the latter in relation to the matter of payment for any loss or expense relating to the attendance or production of the document.  The issue of privilege has been fully contested.  I have received both oral submissions and written submissions.  The submissions were made by counsel.  I am of the view that that was appropriate both so far as G Limited is concerned, as well as on behalf of the Husband.

3. The issue of privilege in these circumstances can sometimes be complex. The fact that this matter was not “straightforward”, as has been submitted on behalf of the Husband, is demonstrated by the fact that not only has an affidavit been filed on behalf of G Limited in relation to the dominant purpose rule, but also that counsel for that company submitted that I should not exercise my discretion to inspect the relevant material pursuant to s.133 of the Evidence Act.

4. There are submissions made, which I accept, that it appears from the affidavit of P.A. Hobart to which I have referred, that some items reflecting costs incurred by G Limited were not strictly in relation to the claim of privilege that has been agitated. 

5. G Limited has been wholly successful on the substantive issue.  However, due to the submissions which I have accepted as to certain items of expenditure I am not prepared to accept that the amount of the order should be $10,100.00.  I will make an order which provides for the costs to be assessed and agreed upon or, failing agreement as taxed.

6. I certify that it was proper for counsel to be briefed for both G Limited and the Husband.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  10 September 2009