Salmani & Hasan

[2021] FamCA 523

FAMILY COURT OF AUSTRALIA

Salmani & Hasan [2021] FamCA 523

Judgment of:	HARPER J
Date of judgment:	28 July 2021
Catchwords:	FAMILY LAW – EVIDENCE – Privilege –  Where father makes a claim for privilege – Where it is submitted that the face of the documents is a sufficient basis upon which to determine whether privilege attaches – Where documents include phone recordings, call spreadsheets, and transcripts – Where documents consist of discussions about family law proceedings which remain before the court – Claim upheld
Legislation:	Evidence Act 1995 (NSW) ss 119, 188
Number of paragraphs:	4
Date of hearing:	28 July 2021
Place:	Sydney
Counsel for the Applicant:	Mr Dura
Solicitor for the Applicant:	Barkus Doolan
Counsel for the Respondent:	Mr Lloyd SC
Solicitor for the Respondent:	One Group Legal
Solicitor for the Independent Children's Lawyer:	Ms Smith
Solicitor for the Intervener:	Crown Solicitor

ORDERS

BETWEEN:

MS SALMANI

Applicant

AND:

MR HASAN

Respondent

NSW CRIME COMMISSION

Intervener

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARPER J
DATE OF ORDER:	28 JULY 2021

THE COURT ORDERS THAT:

1.The Applicant Mother have access to the unredacted copy of the report of Dr DD dated 18 February 2021.

2.The hearing of this matter on 28 July 2021 be limited to the participants on the Microsoft Teams platform, those being the parties and their lawyer, and Courtroom 7A, Lionel Bowen Building, Goulburn Street, Sydney is otherwise a closed court.

NSW CRIME COMMISSION’S APPLICATION IN A CASE FILED 26 MAY 2021

THE COURT NOTES THAT:

A. The NSW Police have not made any objection to access to access to the reports of Dr DD dated 9 December 2018 and 18 February 2019, only the NSW Crimes Commission has done so.

THE COURT ORDERS THAT:

3.Judgment is reserved in relation to the Application in a Case filed by the NSW Crimes Commission on 26 May 2021, seeking relief on the basis of public interest immunity.

APPLICANT MOTHER’S APPLICATION IN A CASE FILED ON 24 APRIL 2020

THE COURT ORDERS THAT:

4.The documents identified in a bundle containing an index of various documents, many of which were formerly subject to the claim for privilege but no longer are, be marked “Exhibit 1”.

5.The schedule of items contained within the envelope marked “Confidential and Subject to Claims of Legal Professional Privilege” be marked as “Exhibit 2”.

6.That items 1, 2, 3, 4 and 6 as identified in Exhibit 2 are not to be accessed or provided to any party in the proceedings, pending further order of the court.

7.Within 48 hours the Applicant Mother’s solicitor is to correspond with the Respondent Father’s solicitor by letter setting out what documents or categories of documents the Applicant Mother contends have not been, and should be, disclosed to her by reference to the documents or categories of documents as set out on page 6, paragraph 1 of the Mother’s Case Outline filed on 26 July 2021.

8.The Respondent Father is to respond within three days thereafter.

9.Leave be granted to either party to apply to the Court to have the matter restored before me on 3 days’ notice to adjudicate on any outstanding debate concerning the Applicant Mother’s request for disclosure referred to in Order 7.

THE COURT NOTES THAT:

B. The documents in Exhibit 1 are:

i.Father’s schedule of items which:

a.legal professional privilege is claimed (items 1,2,3 and 4, and 6); and

b.legal professional privilege had previously been claimed (items 5,7,8 and 9)

ii.Transcript of recordings, being items 5, 7, 8 and 9 referred to in the schedule (Tender 1) which legal professional privilege had previously been claimed.

C.The documents contained in Exhibit 2 are as follows:

iii.Schedule of items 1-9 regarding transcripts and recordings contained in the envelope marked “Confidential and Subject to Claims of Legal Professional Privilege.

D.The Court declined to make the proposed orders 2 and 3 as set out by the Applicant Mother in her Case Outline filed on 26 July 2021.

THE COURT FURTHER ORDERS THAT:

10.The schedule of items contained within the envelope marked “Confidential” and subject to claims for legal and professional privilege be marked “Exhibit 2”. 

11.No party to the proceedings be given access to items 1, 2, 3, 4, and 6 of Exhibit 2, pending further order of the court.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

HARPER J

1. The father in these proceedings has made a claim for privilege in respect of three documents.  They are described as portions of a DVD, a transcript of a call between himself and a previous solicitor, and recordings of a call between a solicitor and a Queen's Counsel.  The father has provided no affidavit evidence in support of his claim for privilege, but senior counsel has submitted that the face of the documents is a sufficient basis upon which the court may determine whether or not privilege, as claimed, attaches to any or all of the documents. 

2. The documents in question are identified in a bundle which contained an index to various documents, many of which were formally the subject of a claim for privilege, but no longer are.  I marked that bundle “Exhibit 1”.  Within Exhibit 1 and its schedule, the documents in dispute are items 1, 2, 3, 4, and 6.  Item 4 is described as a recording of a telephone call between the father and Samantha Lewis, solicitor, discussing the family law proceedings which remain before the court.  Item 6 is described as a recording of a call between the father and Greg James QC, discussing the family law proceedings which remain before the court.

3. In respect of item 1, which is a DVD containing audio recordings of audio calls, the only claim to privilege is to those parts of the DVD which refer to items 4 and 6.  Item 2 is a call spreadsheet, and once again, the claim for privilege is in respect of only two items on the spreadsheet which refer to items 4 and 6.  Item 3 is a transcript of the father's call with his previous solicitor, Samantha Lewis, discussing the family law proceedings before the court.  That transcript was included in an envelope retained by the subpoena section of the registry, marked “Confidential”, and subject to claims for legal professional privilege.  A transcript which forms item 6 was contained within the same envelope. 

4. On the basis of what is disclosed on the face of the documents, I am satisfied that item 4 is a confidential communication for the dominant purpose of legal advice within s 118 of the Evidence Act 1995 (NSW) (“the Act”). I am satisfied that item 6 is a confidential communication between the father and another person for the dominant purpose of the father being provided with professional legal services relating to Australian proceedings within s 119 of the Act. I further uphold the claim for privilege in relation to items 1, 2, and 3 on the basis that their disclosure may risk the loss or waiver of legal professional privilege attaching to items 4 and 6.

I certify that the preceding four (4) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 28 July 2021.

Associate:

Dated: 9 September 2021