Sanket & Zain

Case [2025] FedCFamC1F 51

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sanket & Zain [2025] FedCFamC1F 51

File number(s): PAC 3383 of 2023
Judgment of: ANDERSON J
Date of judgment: 7 February 2025
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife asserts that the husband has acted in a manner inconsistent with the maintenance of legal professional privilege with respect to the file maintained by his solicitor – Where the Court finds that the husband has expressly waived privilege with respect to certain topics as they relate to the parties’ competing financial applications – Where the Court makes consequent orders as to disclosure
Legislation:

Family Law Act 1975 (Cth) s 106B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6, 12

Legal Profession Uniform Law (NSW) s 174, 180

Cases cited:

AWB Ltd v Cole (No. 5) (2006) 155 FCR 30; [2006] FCA 1234

Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; [2002] HCA 49

Ewin v Vergara (No 2) (2012) 209 FCR 288; [2012] FCA 1518

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46

Hartogen Energy Ltd (In Liq) v Australian Gas Light Co (1992) 36 FCR 557; [1992] FCA 322

Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66

Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295

Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275

Division: Division 1 First Instance
Number of paragraphs: 58
Date of hearing: 21 November 2024 and 12 December 2024
Place: Parramatta
Solicitor for the Applicant: David Leamy Solicitor & Barrister
Counsel for the Respondents: Ms Meares
Solicitor for the Respondents: FB Legal
Solicitor for the Independent Children's Lawyer: Legal Aid NSW Bankstown Family Law

ORDERS

PAC 3383 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SANKET

Applicant
AND:

MS ZAIN

First Respondent

MS SENFT

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:

Affidavit of Documents

1.Without limiting his continuing obligation to make full disclosure in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), by no later than 4.00 pm on 21 February 2025, the Applicant Husband (“the husband”) file and serve upon the Respondent Wife (“the wife”) a List of Documents disclosing:

(a)Any Costs Agreement between the husband and his solicitor and/or any document, which:

(i)Evidences the basis on which the husband’s solicitor would calculate his costs;

(ii)Evidences the precise work, which the husband’s solicitor was engaged to perform from time to time;

(b)Communications or correspondence between the husband, and/or on his behalf, and the husband’s solicitor for the period from the date of the husband’s engagement of his solicitor to 4 December 2024 with respect to the parties’ competing financial applications;

(c)All file notes created by the husband’s solicitor…

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AGLC
Sanket & Zain [2025] FedCFamC1F 51
Case
[2025] FedCFamC1F 51
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Sanket & Zain was heard and determined by Anderson J. The dispute involved issues of legal professional privilege and disclosure in the context of family law proceedings. The wife alleged that the husband had acted in a manner inconsistent with the maintenance of legal professional privilege concerning the file maintained by his solicitor. The court was tasked with determining whether the husband had expressly waived privilege with respect to certain topics relevant to the parties' competing financial applications.

The court found that the husband had indeed waived privilege concerning the specified topics. This conclusion was based on the husband's solicitor's assertion that he was authorized to waive privilege in relation to the facts disclosed in his affidavit. The court referenced the principles established in Daniels Corporation International Pty Ltd v ACCC, emphasizing that legal professional privilege is a substantive law rule that can be availed of to resist the disclosure of certain documents and communications. The court also noted that privilege could be waived if the dominant purpose test was met.

In light of the waiver of privilege, the court made orders requiring the husband to disclose specific categories of documents related to the parties' financial applications. These documents included costs agreements, communications between the husband and his solicitor, file notes, telephone records, trust account statements, and advice on disclosure and asset disposal. The court also required the husband's solicitor to provide an affidavit explaining the existence or non-existence of these documents. The court ensured that the orders did not compel the disclosure of privileged communications related to the wife's entitlements or parenting applications.

The court dismissed the extant interim applications and reserved the costs for the trial. It listed the matter for mention to prepare for trial, including issuing trial directions. The orders also mandated that the husband's solicitor file an affidavit by a specified date if certain documents did not exist, explaining why those documents were not disclosed.

Orders

Orders of the court

PAC 3383 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SANKET

Applicant

AND:

MS ZAIN

First Respondent

MS SENFT

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:

Affidavit of Documents

1. Without limiting his continuing obligation to make full disclosure in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), by no later than 4.00 pm on 21 February 2025, the Applicant Husband (“the husband”) file and serve upon the Respondent Wife (“the wife”) a List of Documents disclosing:

(a) Any Costs Agreement between the husband and his solicitor and/or any document, which:

(i) Evidences the basis on which the husband’s solicitor would calculate his costs;

(ii) Evidences the precise work, which the husband’s solicitor was engaged to perform from time to time;

(b) Communications or correspondence between the husband, and/or on his behalf, and the husband’s solicitor for the period from the date of the husband’s engagement of his solicitor to 4 December 2024 with respect to the parties’ competing financial applications;

(c) All file notes created by the husband’s solicitor relevant to the parties’ competing financial applications for the period from the date of the husband’s engagement of his solicitor to 4 December 2024;

(d) All records of telephone conversations between the husband, and/or on his behalf, and the husband’s solicitor and/or any member of his office with respect to the parties’ competing financial applications for the period from the date of the husband’s engagement of his solicitor to 4 December 2024;

(e) Any document, which records in any manner whatsoever instructions provided by the husband to his solicitor with respect to the parties’ competing financial applications for the period from the date of the husband’s engagement of his solicitor to 24 October 2024;

(f) All trust account statements, tax invoices and time recording records with respect to work performed by the husband’s solicitor or his office for the period from the date of the husband’s engagement of his solicitor to 4 December 2024;

(g) Documents provided to the husband in which the husband’s solicitor and/or his office provided advice to the husband about his duty of disclosure with respect to financial issues;

(h) All advice provided by the husband’s solicitor and/or his office to the husband in relation to the sale/transfer of the property located at B Street, Suburb C in the State of New South Wales; and

(i) All advice provided by the husband’s solicitor and/or his office to the husband in relation to the disposal of matrimonial assets either prior to or subsequent to the commencement of financial proceedings.

2. The list provided pursuant to Order 1 shall not include any document, which reveals:

(a) Advice provided by the husband’s solicitor and/or his office to the husband with respect to any entitlement of the wife pursuant to her application under Part VIII of the Family Law Act 1975 AND to the extent that any document does reveal such advice, then the husband’s solicitor is permitted to redact the document;

(b) Communications between the husband, and/or on his behalf, and the husband’s solicitor or any member of his office in relation to the parties’ competing parenting applications AND to the extent that any document does reveal such information, then the husband’s solicitor is permitted to redact the document.

3. The list provided pursuant to Order 1 shall comprise, in relation to each communication, correspondence or document:

(a) The date of such communication, correspondence or document;

(b) The method of such communication or correspondence;

(c) The sender;

(d) The addressee(s); and

(e) A brief description of the content of the communication, correspondence or document.

4. Pursuant to r 6.18(1)(b) of the Rules, the husband’s solicitor provide an Affidavit of documents verifying the List referred to in Order 1.

5. Pursuant to r 6.18(1)(e) of the Rules, the husband’s solicitor provide an Affidavit identifying:

(a) Whether any of the categories of documents referred to at Order 1 herein does not exist or has never existed;

(b) The circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the husband and/or his solicitor.

6. In the event that the husband’s solicitor is unable to produce any of the documents referred to at Order 1(a) to 1(i) herein on the basis that such documents do not exist then, and in that event, the husband’s solicitor is to file an affidavit, which explains why:

(a) The husband’s solicitor has not disclosed to his client the basis on which legal costs will be calculated and/or provided an estimate of legal costs as required by the Legal Profession Uniform Law (NSW);

(b) The husband’s solicitor has not provided his client with a costs agreement;

(c) The husband’s solicitor has not maintained file notes and/or records of telephone discussions;

(d) The husband’s solicitor has not provided the husband with advice about his duty of disclosure pursuant to Chapter 6, Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

7. The affidavit referred to at Order 6 shall be filed and served by no later than 4.00pm on 28 February 2025.

Dismissal of interim applications and Costs

8. All extant interim applications be dismissed.

9. The costs of and incidental to the hearing on 12 December 2024 be reserved to Trial such costs certified fit for counsel.

Listing for Trial

10. The matter be listed for mention on 7 February 2025 at 9.30 am for the purpose identifying what orders, if any, are required to prepare the matter for trial, the listing of the competing applications for trial and the making of trial directions.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In addition, and now that the interim applications will be finalised by me, the husband and the wife agree that it is appropriate to consider listing the competing parenting and financial applications for trial. There is no reason why I ought not do so. I will allocate the applications a date for trial, but I will also list the matter before me for mention in circumstances where Ms Senft was not in attendance at Court on the last occasion and trial directions to prepare the matter for trial need to me made.EVIDENCE In support of her application, the wife relied on the following:(a)Application in a Proceeding filed on 20 November 2024;(b)Wife’s Affidavit filed on 18 November 2024;(c)Tendered documents;[9] and(d)Outline of Case Document filed on 9 December 2024.[9] Exhibit W1 to W5 (inclusive). The husband relied on:(a)Response to an Application in a Proceeding filed on 21 November 2024;(b)Affidavit of the husband’s solicitor filed on 24 October 2024;(c)Affidavits of the husband filed on 22 March 2024 and 24 October 2024;(d)Outline of Case Document filed on 9 December 2024.WAIVER OF LEGAL PROFESSIONAL PRIVILEGE The wife’s counsel made a submission to the effect that the documents previously disclosed by the husband’s solicitor and otherwise annexed to his Affidavit filed on 24 October 2024, and the assertion by the husband’s solicitor to the effect that he was authorised to waive legal professional privilege in relation to the facts disclosed in his Affidavit, is inconsistent with the maintenance by the husband of privilege in respect of the entirety of his solicitor’s file. In Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, the High Court held as follows:9. It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the “dominant purpose”' test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation in place of the “sole purpose” test which had been applied following the decision in Grant v Downs.10.Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings. Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s 155 of the Act provides. Thus, for example, it was held in Baker v Campbell, that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s 10 of the Crimes Act 1914 (Cth).11.Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this Court can be traced to Potter v Minahan, was the foundation for the decision in Baker v Campbell. It is a rule which, subject to one possible exception, has been strictly applied by this Court since the decision in Re Bolton; Ex parte Beane. Cases in which it has since been applied include Bropho v Western Australia, Coco v The Queen and Commissioner of Australian Federal Police v Propend Finance Pty Ltd. The possible exception to the strict application of that rule was the decision in Yuill. (Footnotes omitted)

Decision

Reasons for decision

I refer to and repeat the reasons set out in the preceding paragraphs. I consider that these documents are also relevant to the question of the date on which the husband’s solicitor received instructions in relation to financial issues and information, which he had received in relation to the sale of the former matrimonial home.Conclusion as to disclosure For the reasons discussed above, I am satisfied that the categories of documents referred to above are relevant to the facts, which the husband’s solicitor put in issue by his Affidavit filed on 24 October 2024. This being so, I propose to make an Order, which requires the husband to disclose documents within the categories referred to above and to otherwise state whether a specified document or class of documents exists or has never existed. I will also ensure that my Orders are sufficiently wide to include communications, which may have been initiated by or received by any agent of the husband noting the submission made by the husband’s solicitor to the effect that he often communicates through a third party due to the husband’s difficulty in understanding communications in English. As discussed, however, I will draft my Orders such that the husband will not be obliged to make disclosure of any advice provided to him with respect to any entitlement of the wife pursuant to her application under Part VIII of the Act and/or communications between the husband and his solicitor with respect to the parties’ competing financial applications. Finally, and given my concerns about the manner in which the husband’s solicitor has maintained his file, I will require him to file an Affidavit explaining why any of the documents referred to above do not exist.

Ratio Decidendi

Legal Principle Established

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