Riemann and Riemann and Ors - [2017] FamCA 788

FAMILY COURT OF AUSTRALIA

RIEMANN & RIEMANN & ORS

[2017] FamCA 788

FAMILY LAW – PROCEDURAL – INTERIM PROCEEDINGS – Where the wife has retained new solicitors – Where the wife now seeks to amend her application to challenge a transaction and to join third parties – Whether the wife has impliedly waived legal professional privilege in respect to communications with her previous and current solicitors – Whether the husband is required to comply with an obligation agreed to in previous orders to identify and provide documents to which he claims legal professional privilege – Court finds that the wife has waived legal professional privilege in respect to the subject matter of communications contained in an affidavit and also in written submissions – Court finds that the husband should not be required to incur additional expense in providing documents which are not relevant to the proceedings and which he is not otherwise required to provide pursuant to Part 13 of the Family Law Rules 2004.

Family Law Act 1975 (Cth) s 121
Family Law Rules 2004 (Cth) rr 13.01, 13.04, 13.07, 13.13, 13.14, 13.15, 13.12
Evidence Act 1995 (Cth) s 122

ACCC v Construction, Forestry, Mining and Energy Union [2008] FCA 678

Attorney-General (NT) v Maurice (1986) 161 CLR 475
Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 10) [2015] FCA 763
Australian Medi-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No. 3) [2008] FCA 976

Cadbury Schweppes Pty Ltd v Amcor Limited (2008) 246 ALR 137

Causton v Mann Egerton (Johnsons) Ltd [1974] 1 All ER 453
Commissioner of Taxation v Coombes [1999] FCA 842
Complete Technology Pty Limited v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125
Dalton & Dalton [2017] FamCAFC 78
DSE (Holdings) Pty Ltd v Intertan Inc and Anor [2002] WASC 107
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46
Fulham Leisure v Nicholson Graham & Jones [2006] All ER 599
Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39
Grant v Downs [1976] HCA 63
Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485

Harold John Goldberg and Yona Goldberg v Bernard Ng, Hango Holdings Pty Limited And Cheryl Ng (1995) 185 CLR 83

Howarth and Norman [2003] FamCA 613

Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 283

Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117
Mann v Carnell [1999] HCA 66; 201 CLR 1; 168 ALR 86; 74 ALJR 378
Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [No. 2] [1981] Com. L.R 138
Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337
Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87
Thomason v Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347

Woodgate (Trustee) v Northop Hall Pty Ltd [2016] FCA 370

APPLICANT:

Mr Riemann

RESPONDENT:

Ms Riemann

SECOND…

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.

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Details

Case: [2017] FamCA 788
Decision Date: 4 October 2017

CaseChat Overview and Summary

In the matter of Riemann and Riemann and Ors, McClelland J of the Family Court of Australia considered an application by the wife to amend her application to challenge a transaction and join third parties. The central dispute revolved around whether the wife had impliedly waived legal professional privilege concerning communications with her previous and current solicitors, and whether the husband was obliged to provide documents he claimed privilege over.

The court was required to determine two primary legal issues. Firstly, whether the wife had waived legal professional privilege in relation to communications with her legal representatives concerning specific transactions and payments. Secondly, the court considered the extent to which the husband was required to comply with an existing order to identify and provide documents to which he claimed legal professional privilege, particularly in light of the wife's proposed amendments and the potential for increased costs.

McClelland J found that the wife had indeed waived legal professional privilege in respect to the subject matter of communications contained within an affidavit and written submissions. The court reasoned that by relying on these communications to advance her case, the wife had put them in issue. Regarding the husband's obligations, the court determined that he should not be required to incur additional expense in providing documents that were not relevant to the proceedings and which he was not otherwise obliged to provide under the Family Law Rules 2004.

The court ordered that the wife take all necessary steps to ensure her previous and current solicitors produce specific documents and communications to the court within seven days. These documents related to the transfer of interests in companies, transactions involving certain individuals and entities, and payments received. The court also amended a previous order concerning the production of documents.

Orders

Orders of the court

THE COURT ORDERS THAT:

Within seven (7) days of the date of this order the wife do all acts and things necessary to cause the solicitors who have acted for or received instructions from the wife during the period 8 April 2014 and 10 June 2017 ("the Wife's legal representatives") including but not limited to:

a. Uther Webster & Evans Pty Limited;

b. Lander & Rogers Lawyers; and

c. York Law Family Law Specialists

to produce to the exhibits office of the Sydney Registry of the Family Court of Australia, unredacted and unaltered, all letters, emails, file notes, and other documents and records as may have come into existence between 8 April 2014 and 10 June 2017, that record communications as between the wife and the wife's legal representatives (or any employee of the wife's legal representatives), in respect to:

(i) The transfer by W Pty Ltd (ACN …) as Trustee for the X Family Trust of all its interest in Z Pty Ltd ACN … to Y Pty Ltd ACN … as Trustee for the AA Family Trust pursuant to Sale and Purchase Agreement dated 18 September 2013, completed on or about 28 February 2014.

(ii) Transactions entered into between the husband and Mr Aaron in the period subsequent to 17 September 2014.

(iii) Transactions entered into between any entity owned or controlled by the husband and any entity owned or controlled by Mr Aaron in the period subsequent to 17 September 2014.

(iv) Payments received by the husband, in the period subsequent to 17 September 2014, from Mr Aaron and/or any entity owned or controlled by Mr Aaron.

(v) Payments received by any entity owned or controlled by the husband, in the period subsequent to 17 September 2014, from Mr Aaron and/or any entity owned or controlled by Mr Aaron.

(vi) All communication and documentation evidencing the extent to which the wife’s previous solicitors had possession and/or control of the documents now in the possession of the wife’s current solicitors which have been described in these proceedings as the E-documents.

(2) Within seven (7) days of the date of these orders the wife do all acts and things necessary to cause her current solicitors to produce to the exhibits office of the Sydney Registry of the Family Court of Australia, all communication and documentation evidencing the extent to which her current solicitors have possession and/or control of the documents described in these proceedings as the E-documents and the dates when that occurred.

(3) Order 11(d) of the orders made on 31 July 2017 is amended by deleting all words after 2 August 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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