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 that objection and reserved my decision.  This is the judgment arising from that hearing.

BACKGROUND FACTS

1. In these proceedings the applicant asserts that she and the respondent were in a de facto relationship between December 1996 and February 2011.  Subject to a declaration to that effect being made, she seeks further declarations of trust in relation to two properties, including the C Town farm, together with ancillary relief.  In relation to the C Town farm, the declaration which she seeks is that the respondent holds his legal interest in that property on trust for the applicant as to 100 per cent.

2. Whilst apparently conceding that the parties had a personal relationship of some species, the respondent denies that it comprised a de facto relationship of the kind contemplated by s 4AA of the Family Law Act.

3. It is uncontroversial that the C Town farm was bought in 2004 in the respondent’s sole name for $420,000.00.  It is also uncontroversial that thereafter the applicant resided on that property, and indeed continues to do so as at today.  It is also not in dispute that at some time in 2014 (and hence importantly, after the applicant asserts that the parties’ de facto relationship had concluded) the respondent attended upon his then solicitors, V Lawyers, and had them draw up a lease of the C Town farm, under which he was said to be the lessor and the applicant the lessee.  It is likewise uncontroversial that in the first half of 2014, the respondent sought to have the applicant sign that lease.  At paragraph 143 of the respondent’s affidavit filed 19 July 2016, he said as follows:

   In or about early 2014, I asked [the applicant] to sign a lease.  The reason I asked her to do so was due to her refusal to continue to paying the rates and my inability to tax deduct the property.  She refused to do so.  I had the lease documents drawn up by a solicitor.  Annexed hereto and marked “PVT3” is a true copy of the lease.

4. It is not in issue that the applicant refused to sign the lease, and remained in occupation of the C Town farm.  Similarly there is no dispute between the parties that on 15 May 2015 or thereabouts, the respondent’s solicitors served upon the applicant notices pursuant to the Property Law Act 1974 (Qld) requiring the applicant to vacate the C Town farm, which resulted in a flurry of correspondence between the parties’ respective solicitors, but did not see the applicant in fact vacate the property. That correspondence reiterated the applicant’s assertions that the parties had acquired the property during the course of their de facto relationship, and the respondent’s refutation that any such de facto relationship had ever existed between them.

HAS THERE BEEN WAIVER

Relevant legal principles

1. The following principles may be drawn from the authorities dealing with waiver of privilege:

   ·The onus of establishing waiver is on the party so asserting;[1]

   ·To establish waiver, there must be conduct by the party entitled to the privilege which is inconsistent with the maintenance of the confidentiality of the communication;[2]

   ·Whether the waiver should be found to have occurred will be informed partly by the forensic unfairness of allowing a claim to proceed without the disclosure of the otherwise privileged communication;[3]

   ·Thus, for instance, the partial production of a document for a forensic purpose, which could have the consequence of creating a false representation as to the document, and consequently an injustice, requires the opposite party and the court to be given the opportunity of satisfying themselves that the proffered parts of the document represent the whole of the material relevant to the issue in question.[4]

   [1]Nine films and Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442 at [21] per Tamberlin J.

   [2]DSEHoldings Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [58] per Allsop J (as his Honour then was), Abigroup Ltd v Atkins (1997) 42 NSWLR 623 at 634 per Bainton J.

   [3]DSE Holdings Pty Ltd v Intertan Inc (supra) at [58] per Allsop J (as his Honour then was), Attorney-General (NT) v Maurice (1986) 161 CLR 475.

   [4]Attorney-General (NT) v Maurice  (supra) at 482 per Gibbs CJ, Apple Inc v Samsung Electronics Co Limited (No 2) [2012] FCA 1358 at 84 per Cowdroy J.

The relevant conduct

1. There was no argument before me by the applicant that the documents the subject of the subpoena to V Lawyers were not subject to legal professional privilege under s 118(a) of the Commonwealth Evidence Act.  Rather the applicant contended that by his conduct in these proceedings, the respondent had waived that privilege.  The conduct which she relied upon as comprising the conduct inconsistent with the maintenance of the privilege, was said to be paragraph 143 of the respondent’s affidavit filed 19 July 2016 recited above (which annexed the draft lease) and his solicitors’ correspondence contained at pages 15 to 28 of the annexure to the applicant’s affidavit filed 13 July 2015, which correspondence was supplemented in the evidence before me by a further letter from the respondent’s solicitors to the applicant’s solicitors dated 10 June 2015.[5]

   [5]Exhibit A before me.

2. In the applicant’s outline of submissions her counsel specifically delineated those parts of the chain of correspondence which she said comprised the relevant inconsistent conduct.  They are as follows:

   (a)Letter from respondent’s solicitors to applicant’s solicitors dated 20.05.15:-

   Our client has allowed your client to live on the farm located at [D Street, C Town] (“the farm”), in exchange for her taking care of the farm and house.  Your client has not been charged rent per se, however she has paid land and water rates for the previous two years as a form of rent.  Our client has requested that your client enter into a formal lease he had drafted by [V Lawyers] however your client refused to do so.

   As part of her caretaking of the farm our client accepts that your client has occasion (sic) performed domestic duties for him such as cooking, cleaning and general caretaking at the properties;

   (b)Letter from respondent’s solicitors to applicant’s solicitors dated 15.05.15, which attached the two notices under the Property Law Act 1974;

   (c)Letter from respondent’s solicitors to applicant’s solicitors dated 22.05.15:-

   We confirm our client has issued your client with notices to vacate from his property;

   (d)Letter from applicant’s solicitors to respondent’s solicitors dated 28.05.15:-

   Our client denies paying land and water rates as a form of rent… your client wanted our client to formalise these arrangements as a rental agreement however our client rejected this proposal as she did not accept that she was a tenant;

   (e)Letter from respondent’s solicitors to applicant’s solicitors dated 10 June 2015:-

   In the meantime, our client intends to continue to exercise his rights as a lessor, in having your client removed from his property.

Evaluation

1. Plainly the draft lease was never itself the subject of legal professional privilege, as it was provided to the applicant by the respondent directly.  Equally plainly, the respondent seeks to make a forensic use of the draft lease as, presumably, evidencing his contemporaneous state of mind that the circumstances of the applicant’s occupation of the C Town farm were of a kind that justified him demanding her to formalise the arrangement by executing the lease.  However, importantly:

   ·Although the respondent does say that he had the lease documents drawn up by a solicitor (which would be an almost irresistible inference from the document itself which, by clause 1.7 of the schedule, identified that the landlord’s address for service was care of V Lawyers) paragraph 143 of the respondent’s affidavit filed 19 July 2016 does not assert, even inferentially, anything as to the instructions which he gave those solicitors, or any advice which they may have given him in the course of discussions leading to the lease being drawn;

   ·The respondent does not otherwise refer to his instructions to his solicitors, or their advice to him, whether in paragraph 143, or in the solicitors correspondence which I have referred to above.

2. Applying the principles recited above, it follows that I am not persuaded that the reliance upon the lease in these proceedings, even with the assertion that it was drawn up by a solicitor, is action inconsistent with the maintenance of the confidentiality of the communications between the respondent and his then solicitors of the kind sought to be produced pursuant to the subpoena.  Further, and more emphatically, it is not conduct inconsistent with the maintenance of the confidentiality of the instructions and advices between the respondent and his solicitors in relation to the nature of the personal relationship which existed between him and the applicant, or the solicitors’ advice to him about his legal position in the event that the applicant made a claim for a de facto property settlement against him. 

3. Further there is no forensic unfairness to the applicant by the respondent relying upon the draft lease, and the fact of his unsuccessful proffering of it to the applicant, without her and the court having the opportunity to scrutinise the communications which led to its generation. 

4. There therefore has been no waiver of the privilege which plainly otherwise attaches to those communications and documents.

CONCLUSION

1. For these reasons the respondent’s Notice of Objection to the subpoena to V will be upheld.    

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 August 2016.

Associate:

Date: 26 August 2016