Power and Vandenberg

[2016] FamCA 715

FAMILY COURT OF AUSTRALIA

POWER & VANDENBERG [2016] FamCA 715

FAMILY LAW – Evidence – Legal Privilege – Where respondents Notice of Objection to the subpoena is upheld – where court issues a subpoena addressed to a law firm – where first category sought records it held in relation to a lease over the farming property – where second category sough records as to the nature of the relationship between the parties – where respondent objected on the grounds that the material contained confidential communications between lawyer and client – where applicant contended the respondent waived that privilege – where applicant argues respondents conduct was inconsistent with the maintenance of that privilege – where the conduct held not to be inconsistent with the maintenance of the confidentiality – where applicant asserts that the parties were in a de facto relationship – where applicant seeks declarations of trust in relation to two properties 

Evidence Act 1995 (Cth) s 118(a)
Family Law Act 1975 (Cth) ss 4AA

APPLICANT: Ms Power

RESPONDENT: Mr Vandenberg

FILE NUMBER: CSC 420 of 2015

DATE DELIVERED: 26 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 27 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fraser

SOLICITORS FOR THE APPLICANT: Millyard Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Fellows

SOLICITORS FOR THE RESPONDENT: Macdonnells Law Cairns

Orders

1. The respondent’s Notice of Objection to the subpoena to V Lawyers is upheld.   

IT IS NOTED that publication of this judgment by this Court under the pseudonym Power & Vandenberg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: CSC420/2015

Ms Power

Applicant

And

Mr Vandenberg

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 11 March 2016 at the instance of the applicant, the court issued a subpoena addressed to “The Partners, [V] Lawyers” to produce two categories of material.  The first were any records they held relating to that firm having drawn up, on behalf of the respondent, a lease over a farming property at C Town, in North Queensland (“the C Town farm”).  The second category were records held by that firm evidencing instructions from the respondent in relation to the nature of the relationship between the applicant and the respondent, and any advice which that firm may have given to the respondent “in the event of a claim for de facto property settlement [being] made against him” by the applicant.

2. I was told without contradiction that the subpoena had been answered, however the respondent filed a Notice of Objection to that subpoena on 19 April 2016, in which he objected to the production of the documents on the basis that they “contained confidential communications made between the client and a lawyer for the dominant purpose of the lawyer providing legal advice to the client.”  The applicant contends that the privilege has been waived by the respondent.

3. On 27 July 2016 I heard submissions in relation to…